While the risk to Australian workers is very low, the magnitude of the threat is such that employers should take a quick moment to familiarise themselves with the workers' compensation implications and how they can manage them.
As at 6 March 2020, the World Health Organisation were reporting that there have been 95,270 confirmed cases in 79 countries with 80,565 of those being in China. There have only been 43 confirmed cases in Australia with 1 death. There have been 3,280 deaths worldwide.
However, given the first case was only reported on 31 December 2019, and the infection rates in Australia have doubled (off a very low base) in the last two weeks, there is the potential for the situation to deteriorate significantly.
Will coronavirus be covered by workers' compensation?Probably not, in most cases, but as with many legal questions, it depends on the circumstances.
Pursuant to section 32(3)(a) of the Workers' Compensation and Rehabilitation Act (Qld), an injury clearly includes a 'disease' such as coronavirus. The definitions in other states are similar.
However, similarly to other work injuries, to establish an entitlement to compensation, the coronavirus would need to be 'contracted in the course of employment' and, in most jurisdictions, employment would need to be a 'significant contributing factor' to the contraction of the disease.
There is little case law to guide us on compensability for viruses (presumably because people usually make a full recovery from them). However, in the event of a prolonged period of incapacity or death a worker or their dependants might be more inclined to test their rights.
However, employment needs to be more than merely the 'scene' of where the disease is contracted or the place where symptoms first present themselves.
Any workers' compensation claim will require the person considering entitlement (whether it be an insurer or self-insurer, a Regulator or court / tribunal) to conduct a highly fact-sensitive enquiry.
In the presence of a broad outbreak in Australia, a worker would have grave difficulty proving that it was more likely they contracted the disease at work as opposed to anywhere else. However, if infection rates remain relatively low it would probably not be difficult to prove where the worker contracted the virus. That is, if the worker came into contact with one of the currently very small number of people at work, and nowhere else, the virus may be compensable.
As an example, if a mini-bus driver for a Gold Coast hotel had close contact with the tourists who were recently hospitalised with the virus at the Gold Coast University Hospital, that worker might be able to satisfy both the 'arising out of' and 'significant contributing factor' limbs of the definition.
Likewise, someone on a work trip to the Wuhan province of China (if it were possible to get there right now) would probably establish entitlement because they were 'induced or encouraged' by the employer to go to a place where they were at risk of contracting the disease.
Nevertheless, there could be other scenarios where the question squarely arises as to whether the work itself had anything to do with contracting the disease, as opposed to merely being the scene of the contraction. For instance, if a worker established that they most likely contacted the virus from a co worker would they need to prove a greater connection?There have been cases in the federal workers' compensation sphere where workers have established an entitlement to compensation for a virus based on expert evidence that the infection occurred through the air conditioning system. However, would the situation be different if the most likely cause was due to incidental contact with a co-worker that could have occurred anywhere?
Given the low numbers of infections and, just as relevantly, the low chance of permanent symptoms or death, it seems that the greatest workers' compensation risk for employers is in respect of psychological injuries caused by an overreaction to the risk. For instance, there have been examples in the broader community of people overreacting to the risk by harassing and vilifying Chinese migrants. Employers should be very careful to guard against such risks and ensure that any mitigating steps they take in response to coronavirus are measured and that their employees treat people from at risk countries with respect.
Common law liability?At this stage, we would expect the common law risk in respect of coronavirus would be low.
However, there is a current Commonwealth Department of Health alert in respect of the disease identifying that the people most at risk of getting the virus are those who have:
- been in close contact with an infectious person
- had contact with droplets from an infected person's cough or sneeze.
If an employer becomes aware of the risk factors and does not follow government advice, they may open themselves up to common law liability.
Being a responsible employer – what other measures should you takeAgain, we would reiterate that, given the presently low level of the risk of contracting the virus, perhaps the greatest risk for employers is over-reacting. However, measures that should be considered include:
- following the advice on the smarttraveller.gov.au website in respect of work travel, which, in respect of China and a small number of other countries, currently has a 'do not travel' advisory
- monitoring the situation in other potential destinations, such as Japan, whose advisory is currently 'exercise a high degree of caution'
- recommending that workers consider the above when arranging their personal travel
- requiring workers to work from home where they show symptoms following travel to China
- monitoring signs of illness and, if shown, encourage workers to seek medical attention
- providing hygienic products at work.