What legal rights do you have if you catch the virus at work?

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Paid time off in the event of a pandemic is rare. It was available to workers covered by three awards – the 2020 Healthcare Professional and Support Services Award, the 2010 Nursing Award, and the 2010 Elderly Care Award – but those provisions expired. The possible right to additional paid vacation therefore depends on your company agreement or your individual employment contract.

If you are a casual or contract worker who is not entitled to time off, none of these provisions apply to you. You may, however, be eligible for a pandemic leave payment if you need to quarantine or self-isolate (or need to care for someone who does). This pays up to $ 1,500 to cover two weeks off. Here you can find information on whether this payment is currently available in your state or territory, and whether you are eligible.

Employers have a responsibility to minimize the risk of transmission of COVID-19 in the workplace. Employees are expected to cooperate in these efforts.

Workers’ compensation for COVID-19

If you can show that you caught COVID-19 at work, you may be entitled to workers’ compensation for medical bills and lost earnings. This will be especially important if you develop a long COVID and need to be away for much longer.

Workers’ compensation plans are administered by state and territory governments, so the rights differ. A list of agencies is available here.

Two states – NSW and Western Australia – have amended their workers’ compensation laws to deal specifically with COVID-19. NSW and WA laws include a “presumption” for certain professions that the capture of COVID-19 is the result of their work. This means that the onus is on the employer to prove that a worker contracted the disease outside of work if they wish to oppose the compensation claim.

NSW’s presumption covers a long list of ‘prescribed’ jobs including retail, healthcare, education, hospitality, emergency services, and other jobs that cannot be performed at home . You can find the list in Section 19B of the New South Wales Workers’ Compensation Act. WA law limits the presumption to medical professionals and paramedics.

In other states and for other professions, the same provisions covering other injuries apply. You will need to show that your job was a substantial or significant contributor to contracting COVID-19. For more information, contact your union or the local workers’ compensation agency.

What if you are traveling for work?

If you catch COVID-19 while traveling for work – or another activity that your employer has encouraged you to undertake in the course of your work – you may be eligible for workers’ compensation compensation. Travel to and from work is generally also covered as a “travel claim”.

This principle was confirmed by the New South Wales Personal Injury Commission in August 2021, when it decided that iCare (the workers’ compensation insurer of New South Wales) should pay a benefit. death of $ 834,200 to Sayd Sara after her husband contracted COVID-19 while traveling on business in the United States and subsequently died.

You are entitled to workers’ compensation benefits if you catch COVID-19 while traveling for work or other activity that your employer has encouraged you to undertake in the course of your work.

What about contract workers?

An important condition for all of this information is that you must be an employee or a “deemed worker” to be covered by workers’ compensation.

State and territory laws vary but generally define a deemed worker as someone working under a “contract for service,” rather than providing a service as a business. This covers workers who may be treated as contractors by law, but not employees entitled to benefits such as sick leave.

How the claims of concert workers (such as food delivery couriers) are likely to be resolved is uncertain. In the past, the NSW Workers’ Compensation Board has dismissed such claims – by an Uber driver in 2018, for example, and by an Uber Eats driver in 2020 – because they could not prove a service contract.


Common law compensation

Workers’ compensation is a “no-fault” system. You don’t need to prove that your employer is at fault. Workers’ compensation laws also allow you to bring a common law action in court if the injury or illness is the fault of your employer.

To be successful, you will need to establish a willful or negligent breach of the duty to provide a safe workplace.

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State systems differ in that they require a certain level of disability before a common law action can be brought. For example, South Australian law requires an employee to have a “total personal impairment” of at least 30 percent in order to bring a common law action. This is an area where you should consult a specialist lawyer.

There have been reports of people considering suing an employer in Australia. But so far there is no case. That compares to several thousand COVID-related workers compensation claims – more than 1,800 in NSW alone.

The amount a court might award in a successful common law case will depend on factors such as compensation for loss of future income and exemplary damages to punish and deter future wrongdoing.

This potential liability explains why so many employers are anxious about making vaccination mandatory for workers who come into contact with others. That’s why prudent employers will continue to maintain social distancing and cleaning protocols in their workplaces.

Joellen Riley Munton is Professor of Law at the Sydney University of Technology

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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