Further my post No running commentary on COVID-19 (March 23, 2020) I have received this question from a volunteer with NSW SES:
As a volunteer for the NSW SES, I am interested to understand if as a volunteer we are responded to an incident and during attendance become infected by COVID-19. The assumption would be that all who attended followed all the appropriate protocols put in place by the relevant agencies.
I understand many of us attend our employment or emergency service tasks and sometimes get the flu, this has just become an accepted part of life, however COVID-19 has the potential significant health consequences, potentially death. If a worker follows all current protocols, does that remove all liability from their agency in the event they become infected?
As someone who is generally unfamiliar with the law, I feel it may be hard to provide strong evidence for the claim that a person became sick whilst attending an emergency incident. Do you feel the current systems and protections in place within NSW or Australia are suited to cater for these potential outcomes in the favour of staff/volunteers?
A volunteer with NSW SES who suffers an injury or illness as a result of their volunteering is entitled to compensation as if they were an employee entitled to workers compensation (Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW)). Under that Act and the Workers Compensation Act 1987 (NSW) s 4, ‘injury’ includes ‘a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease’.
One might imagine it may not be that hard to prove a link between volunteering and COVID-19. If for example a crew was engaged in road crash rescue and the patient was transported to hospital, it was identified that they had a fever (not the usual response to a trauma) so was tested and found to be COVID-19 positive then there would be contact tracing. That would hopefully lead back to the rescuers and if one of them was COVID-19 positive and developing symptoms after the accident that may be sufficient to establish that was the cause of the infection.
But we are all at risk and could all catch it anywhere (hence all the recommendations). If one could not establish the source of infection, then the entitlement under the Act would not apply. But that of course is true of everyone. Anyone who is still going to work may contact COVID-19 in circumstances where they would not have had they stayed at home. If the only place they are going is work then that may show that is the source of their contagion, but if they go to the shops, interact with others (including family) etc then there may be other sources.
I’m not sure ‘the current systems and protections in place within NSW or Australia are suited to cater for these potential outcomes in the favour of staff/volunteers’ for any organisation. Most people who have to isolate for 14 days will need to rely on their own resources, their leave entitlements and/or the generosity of their employer or the Federal Government. That’s true no matter what their occupation or volunteer status.
The ‘business as usual’ legal response is not well-suited to this pandemic for anyone. How people will be provided for if they have to isolate for 14 days, or worse, is a constantly evolving process and no doubt varies with employer or agency, but if you can trace exposure to an emergency response, the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 (NSW) will apply.