Today’s question comes from a correspondent who is concerned about
… the extent of coverage of occupationally acquired COVID-19 for health care workers, specifically in ambulance services and the quality of PPE available/used. Concern applies because I’m advised in SA AS PPE was not available for covering the head – glasses yes (apparently).
And does WorkCover extend to your quarantine / self isolation?
I cannot answer that question in detail as I’m not a specialist in personal injuries law.
What I can say is that the definition of injury includes disease (Return to Work Act 2014 (SA) s 4). For a disease to be compensable it must be ‘established on the balance of probabilities that it arises from employment’ (s 9). Where it can be shown that a person acquired the disease as part of their work they will be entitled to workers compensation. Workers compensation is ‘no fault’ so the issue of PPE would not be relevant.
With respect to how one proves that the disease was contracted at work, that would depend on all the circumstances (see Compensation for contracting COVID-19 whilst volunteering – NSW SES (March 23, 2020)). There has been a trend for presumptive benefits so firefighters in particular don’t need to prove a causal connection between their firefighting and various diseases, rather if they meet the requirements regarding length and type of service, and they are diagnosed with a listed illness or cancer, they are entitled to compensation and it is ‘presumed’ that the disease was a product of their service (see for example Return to Work Act 2014 (SA) s 9(2) and schedule 3). It may be that there should be a provision added to the effect that if a paramedic, nurse, doctor or other front-line health service worker contracts COVID-19 that will be presumed to be because of their employment without the need for evidence.
If the PPE issued is not up to scratch that may give rise to a claim in negligence against the employer but as will all negligence claims, the employers obligation is to act ‘reasonably in all the circumstances’ and those circumstances include a world where there is a shortage of PPE. An employer has to decide whether to ask staff to bat on with less than ideal kit, or withdraw services and in doing that they also have to consider the needs of patients and the need to try to curtail the virus. If a person got sick and spent a long time in hospital, or died, a common law action may be worth it. If they get mild or no symptoms but spend two weeks in isolation with no income, a common law action would not be worth either the time or money.
Assuming that a person contracts COVID-19 as part of their work it would follow that their lost wages and health care costs would be met either by the employer or the employer’s insurer. What is less clear is if someone is required to self-isolate as a precaution, but they are not actually ill and don’t actually contract the illness. I cannot say whether workers compensation would cover lost wages in those circumstances. My guess is that it would not as the worker has not actually acquired the disease/suffered an injury.