The NSW Parliament has moved to deliver new protections for a wide range of essential workers at risk of contracting COVID-19 in the course of their duties.

On 14 May 2020, the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous) Bill 2020 [NSW] was passed by both houses of Parliament.

The amendments will provide medical assistance and wage cover to workers who are unable to work as a result of COVID-19. For dependents of essential workers who have died from COVID-19, they will be entitled to bring a claim for death benefits

The changes extend to include a variety of industries including health, education, hospitality, entertainment, construction and retail. This Act also applies to casual workers who have worked up to 21 days preceding the date of injury.

Employment Industries include:

• The retail industry (excluding purely on-line businesses)
• The health care sector, including public health employees
• Police and emergency services
• Firefighters (including rural fire services)
• Ambulance officers
• Educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only on-line teaching)
• The cleaning industry
• The construction industry
• Restaurants, clubs and hotels
• Disability and aged care facilities
• Refugees, halfway houses and shelters
• Passenger transport services
• Courts and tribunals
• Correctional and detention centres
• Places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos)

Date of Injury

According to the new legislation (Section 19B-4), the date of injury is to be determined by whichever occurs first:

(a) The worker is diagnosed by a medical practitioner with COVID-19 following a prescribed test result

(b) The worker is classified by a medical practitioner as having COVID-19 (applying epidemiological or clinical criteria prescribed by the Regulations)

(c) The worker dies as a result of COVID-19

Capacity for Work

According to the legislation (Section 19B-5), a worker is presumed (unless the contrary is established) to be incapable of work as a result of COVID-19 from the date of injury until:

(a) On a date established in accordance with the Regulations; or

(b) If no Regulations are made, on a date that is 7 days after the date that a medical practitioner certifies that the worker no longer has the disease.

Workers Who Contracted COVID-19 before 14 May 2020

The Act permits the making of Regulations to address these claims. Further, the Act provides that until such Regulations are made, the Act extends to a worker who contracted COVID-19 before 14 May.

Despite the changes, an employer will still have the opportunity to prove a COVID-19 infection did not happen during the course of employment if there is a compelling case. It remains to be seen how the reversed burden of proof will operate in practice, given the narrow timelines afforded to employers and insurers to determine liability for claims of compensation.

Employers in the various industries must be prudent in ensuring workplaces adhere with and enforce public health guidelines. The changes in legislation ought to prompt employers to consider how they can best care for their workforce, as the amendments have pre-empted that regulations may be made which use an employer’s claim history of COVID-10-related claims to calculate policy premiums.

If you have any queries regarding this, please contact us:

Gow-Gates Insurance Brokers

Chad Hewitt

Director – Workplace Solutions

Ph: 0447 277 782