We have been asked by members about the relationship between contracting COVID-19 and workers compensation. The test of whether a disease contracted by a worker in the course of their employment is compensable under the Victorian workers’ compensation regime is whether the worker’s employment was a “significant contributing factor” in contracting the disease. WorkSafe’s guidance indicates that in order for an employee who has contracted COVID-19 to obtain workers’ compensation, there needs to be a clear link between a worker's employment and contracting the virus.
Under the Victorian Workplace Injury Rehabilitation and Compensation Act 2013, workers’ compensation is only available to an employee who contracts a disease (such as COVID-19) arising out of and in the course of their employment if the person’s employment was a “significant contributing factor” to them contracting the disease.
WorkSafe has issued guidance which provides examples of how this could occur in the COVID-19 pandemic, such as an employee travelling to an area with a known viral outbreak or engaging in activities that include interaction with people who have contracted the virus.
If an employee claims workers’ compensation for having contracted COVID-19, it will be important for your insurer to have a complete and accurate understanding of the employee’s work environment, and what they were required to do in the course of their employment, in the time period during which they say they contracted COVID-19. This will enable the insurer to make an informed assessment about whether the person’s employment was a significant contributing factor to contracting COVID-19 and whether the claim should be accepted or declined.
Members need to also be aware that the new OHS COVID-19 Regulations extend the operation of Part 5 of the Occupational Health and Safety Act 2004 (OHS Act) to require duty holders to notify WorkSafe if an employee, independent contractor of self-employed person has received a confirmed diagnosis of COVID-19, and has attended the workplace within the infectious period. Penalties for non-compliance apply
The new industry guidelines
Revision 6 of the COVID-19 Guidelines has been released.
- These guidelines have been revised to incorporate the new regulations approved under the OHS Act on 28 July 2020. The regulations provide that employers are required to notify WorkSafe immediately on becoming aware that an employee or an independent contractor or a contractor’s employee has received a confirmed COVID-19 diagnosis and has attended the workplace during the infectious period.
Self-employed persons are also required to directly inform WorkSafe immediately on receiving a confirmed COVID-19 diagnosis if they have attended the workplace during the infectious period. The infectious period begins on the date 14 days prior to the onset of symptoms or a confirmed COVID-19 diagnosis (whichever comes first), until the day on which the person receives a clearance from isolation from the DHHS. Refer here.
Notify WorkSafe on 13 23 60. See section 3.1
- Revision 6 clarifies that in some cases a worker who has been in casual contact (as distinct from ‘close contact’) with a confirmed case of coronavirus (COVID-19), may be required to be tested for coronavirus (COVID-19) in circumstances where it is considered prudent to do so and as an abundance of caution, having regard to the details of the contact. If in doubt contact the Industry Liaison Officer. This reflects the current practice in the industry which is working well. Transmission control measures are so important. See section 3.18.
- This Revision also emphasises the importance of temperature testing - see section 3.1.7. Whilst this guideline is not mandated, it is an important measure.
- Revision 6 clarifies the need for a worker to get tested if they experience symptoms. See section 3.16. 5.
- Revision 6 communicates the Government’s one-off $300 payment available to support Victorian workers if they are required to self-isolate while they wait for the results of a Coronavirus (COVID-19) test. The COVID-19 worker support payment recognises that the requirement to self-isolate or quarantine at home can cause a financial burden for some individuals and families who are without incomes during this period. See section 4.10.2.
Temporary Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 (OHS COVID-19 Regulations)
Regulations approved under the OHS Act on 28 July 2020 require that a confirmed case of coronavirus (COVID-19) in the workplace may be considered as a reportable incident, in which employers and self-employed persons must immediately notify WorkSafe on 13 23 60. Failure to report an incident to WorkSafe can result in a penalty.
The temporary Occupational Health and Safety (COVID-19 Incident Notification) Regulations 2020 (OHS COVID-19 Regulations) were approved on Tuesday 28 July 2020.
Prior to these new regulations, employers were not required to notify WorkSafe Victoria (WorkSafe) of an infectious disease in the workplace, unless immediate inpatient treatment is required, or the disease is the cause (or suspected cause) of a death.
What is the impact?
The new OHS COVID-19 Regulations extend the operation of Part 5 of the Occupational Health and Safety Act 2004 (OHS Act) to require duty holders to notify WorkSafe if:
- an employer becomes aware that an employee or independent contractor engaged by the employer, and any employees of the independent contractor, has received a confirmed diagnosis of COVID-19, and has attended the workplace within the infectious period (being 14 days prior to receiving the confirmed diagnosis of COVID-19 and until clearance from isolation has been received); or
- a self-employed person has received a confirmed diagnosis of COVID-19 and has attended the workplace within the infectious period (being 14 days prior to receiving the confirmed diagnosis of COVID-19 and until clearance from isolation has been received).
Site cleaning and disinfection still needs to be conducted in accordance with DHHS requirements.
A penalty will apply for failing to notify WorkSafe under section 38 of the OHS Act.
The OHS COVID-19 Regulations are temporary in nature and will expire 12 months after their making.
These changes are now incorporated into the COVID-19 Industry Guidelines.
- See WorkSafe's instructions on how to report a confirmed case of COVID-19.
- Read Version 6 of the Guidelines for the Building and Construction Industry.