Changes to Workers Compensation Laws in Wake of COVID 19
Last month the McGowan government introduced a bill to parliament to amend the provisions of the Workers’ Compensation and Injury Management Act 1981 to benefit healthcare workers who contract COVID-19 and require access to workers’ compensation entitlements.
The bill is intended to reflect the difficult circumstances faced by healthcare workers during the pandemic and attempts to alleviate these by establishing a presumption of injury for those workers who contract COVID-19.
The bill therefore modifies the general legislative requirement where if a healthcare worker contracts COVID-19, they must prove that it was contracted at work in order to be entitled to compensation.
This in effect alleviates the burden on healthcare workers by removing the often lengthy and costly claim investigation stage, making it easier to access their entitlements.
The onus is therefore reversed and will rest on the employer to rebut the presumption that the disease was contracted at work.
Whilst there are existing provisions within the current legislation reversing the onus with certain workers, a bill providing clarity for healthcare workers is a welcomed intervention.
The Workers’ Compensation and Injury Management Amendment (COVID-19 Response) Bill 2020, however not only makes changes specific to healthcare workers amidst COVID-19; the government has also taken the opportunity to make changes to the Workers’ Compensation scheme more generally. The most notable changes are below.
The best bits
· Section 49E(5) allows for the presumptive provision to operate retrospectively from 16 March 2020. Therefore, if you are a healthcare worker who contracted COVID-19 prior to the bill being enacted, you can still make a claim using the presumption that the disease was contracted at work.
· The ‘termination day’ (the final day to elect to pursue a common law claim) is discontinued. This means that where workers normally had one year from the date of filing their claim to elect to pursue common law entitlements; workers are now only subject to the general limitation period under the Limitation Act 2005. This means workers will have a period of up to 3 years to commence a negligence claim against their employer.
· The insertion of s314A, an economic and environmentally friendly provision, allows for the electronic service of certain notices and documents required to be sent under the workers’ compensation legislation.
The worst bits
· The bill, like any other bill is not yet law, and therefore must progress successfully through both houses of parliament before it receives Royal Assent and becomes operational. This means that the bill still has a long way to go before it is implemented and will likely be subject to amendments along the way. On the plus side, given the bill’s application to the COVID-19 crisis, it could be hoped that it will be fast-tracked through parliament.
· Although the termination day to elect to pursue a common law claim has been discontinued, it appears that workers may still be required to ‘elect’ to pursue such a claim.
What does this mean for you
· If the bill is passed, for healthcare workers who contract COVID-19, there is no longer a requirement to undergo significant investigative procedure or medical assessment in order to demonstrate that the employment was a significant contributing factor to the contraction of the disease.
· For other workers who wish to pursue a negligence claim against their employer, the period permitted to do so has effectively been extended from normally one year (two years with an extension) to up to three years.