Workers Compensation and COVID-19

In NSW, if a worker contracts a disease, such as COVID-19, they must prove that they contracted COVID-19 in the course of their employment in order to make a successful workers compensation claim. This meant that it was very difficult for workers who contracted COVID-19, including frontline workers such as doctors, nurses, police and teachers, to establish that they contracted the disease at work.

On 14 May 2020, NSW Parliament passed the COVID-19 Legislation Amendment (Emergency Measures – Miscellaneous Act 2020. This Act changed the Workers Compensation Act 1987 to include a presumption that workers in ‘prescribed employment’ who contract COVID-19 contracted the virus in the course of their employment. This means that certain workers who contract COVID-19 are deemed to have contracted the virus at work.

For the purposes of this legislative change, ‘prescribed employment’ means employment in any of the following areas:

  • The retail industry (other than businesses providing only online retail);
  • The health care sector, including ambulance officers and public health employees;
  • Disability and aged care facilities;
  • Educational institutions, including pre-schools, schools and tertiary institutions (except for those establishments who provide online teaching services only);
  • Police and emergency services (including fire brigades and the Rural Fire Services);
  • Refuges, halfway houses and homeless shelters;
  • Passenger transport services;
  • Libraries;
  • Courts and tribunals;
  • Correctional centres and detention centres;
  • Restaurants, clubs and hotels;
  • The construction industry;
  • Places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos);
  • The cleaning industry; and
  • Any other type of employment prescribed by the regulations for the purposes of this definition.

At the time of writing, the Regulation has not been made, so it is uncertain whether any other types of employment will be included. However, it is pleasing that our frontline workers are covered by the workers compensation scheme in the event that they contract COVID-19.