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  • Writer's pictureStephen Berriman

Important COVID-19 changes to NSW Workers Compensation Legislation

The NSW Parliament has passed a Bill that introduces changes to a raft of statutes, including the Workers Compensation Act 1987 (NSW).

Under the workers compensation changes, any employee who contracts COVID-19 and who is employed in ‘prescribed employment’, will be deemed to have contracted the disease at work, unless proven otherwise. They will be entitled to workers compensation from the time of contraction of the disease until 7 days after being cleared, by a medical practitioner, as no longer having the disease (or other date established under the regulations) or their death, whichever comes first.

Prescribed employment means employment in any of the following:

(a) the retail industry (other than businesses providing only on-line retail),

(b) the health care sector, including ambulance officers and public health employees,

(c) disability and aged care facilities,

(d) educational institutions, including pre-schools, schools and tertiary institutions (other than establishments providing only on-line teaching services),

(e) police and emergency services (including fire brigades and rural fire services),

(f) refuges, halfway houses and homeless shelters,

(g) passenger transport services,

(h) libraries,

(i) courts and tribunals,

(j) correctional centres and detention centres,

(k) restaurants, clubs and hotels,

(l) the construction industry,

(m) places of public entertainment or instruction (including cinemas, museums, galleries, cultural institutions and casinos),

(n) the cleaning industry,

(o) any other type of employment prescribed by the regulations.

The changes also apply to casual workers, but only if they have performed casual work in the prescribed employment on 1 or more of the 21 days preceding the date of contraction of the disease.

The regulations, which are being drawn up now, are expected to flesh out the practical effects of the changes. Initial commentary seems to indicate that deemed COVID-19 claims will:

  • not result in premium penalties or increases and that their costs will be absorbed by the whole workers compensation scheme,

  • not be attributed to the claims history of a business, and

  • not rise to the standard of negligence on the part of the business (unless the business plays an active role in the infection of a worker, e.g. deliberately and knowingly forces or allows an employee to work with COVID-19, who then infects another employee).

We will know more when the regulations are finalised and released. In the meantime, if you would like more details of the changes, please get in touch.

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