With many work arrangements changing on a daily basis in the COVID-19 environment, employers must be conscious of the potential impact of those changes in terms of workers compensation liability. In this article Richard Faulks, Snedden Hall & Gallop managing director and head of our Personal Injury team, addresses these issues.
Workers Compensation Act
Workers compensation in the ACT, for private
sector employers, is governed by the provisions of the Workers Compensation
Act 1951. Workers compensation provides for payments to be made to workers
who are injured in the course of their employment or arising out of their
employment and the term ‘injury’ is broad and includes a disease that has that
In terms of the virus itself, if an employee contracted the COVID-19 virus as a result of contact with another employee or person while in the workplace, there appears little doubt that the injury comprising that disease would be compensable under the legislation.
Generally, a disease is taken to have arisen out of or in the course of employment if the employment substantially contributes to that disease. It appears commonsense that if the disease was contracted at the workplace, it is caught within that definition.
Working from home
A more interesting question arises where an
employee is required, as is the case with many of our places of employment, to
work away from the normal place of employment and in a home environment.
In the first place, if the employee is engaged
in their work activities, even if offsite, and in the home environment, and
suffers an injury – perhaps as a result of the use of equipment or in some
other work-related activity – it is likely that such an injury would be
considered to be suffered in the course of employment and therefore
Similarly, it may be argued that if a worker contracts the virus while at home as a result of exposure to other people in the course of the work being carried out, that may also be considered to be within the definition.
Identifying the source of the virus
A more difficult question may arise if the
virus was contracted and it is unclear whether it occurred during the so-called
work hours or work duties, or at some other time. In those circumstances, a
consideration of the work being a significant contribution may come into play.
We recommend that all employers should notify their workers compensation insurers that they have modified their work arrangements and that some or all of their employees are working from home and that all employers carefully audit the work environment that each employee has to ensure that the work environment meets appropriate occupational health and safety standards, such as ensuring that proper furniture and equipment is available.
We also recommend that such an audit of work from home arrangements should be documented and perhaps photographed.
While staff are working remotely, it is also very important that proper supervision is maintained and that lines of communication are open so that if any incident occurs, employers are aware of it from the outset and can deal with it immediately. We recommend that all employees should be required to let their employer know immediately if they suffer any injury or illness or other problem whilst working in the home environment.
Common law damages
In addition to workers compensation liability, it is still the case that, in the ACT, if a worker is injured as a result of a breach of duty of care on the part of their employer, the worker may be entitled to receive common law damages for that injury. It is our view that the same would apply to any disease that was suffered during work or arising out of work in circumstances where an employer had not acted reasonably and in accordance with its duty of care.
For those reasons, it is essential that every employer has a documented policy dealing with the COVID-19 issues and enforces proper procedures, as recommended by government or health authorities, such as social distancing, proper hygiene or, if it is the only option, working remotely. All such policies should be recorded and distributed to employees.
How can we help?
Should you have any questions arising out of the potential workers compensation or common law liability, we recommend that you contact our Personal Injury team on 02 628 8000 or by email.
*The content of this article is provided for information purposes only, and we do not accept any liability for reliance upon the information contained in this article. This information cannot be relied upon as legal advice.