COVID-19 death now deemed compensable: How to protect your workplace

It’s more important than ever to protect your workplace from COVID-19.

Sara v G & S Sara Pty Ltd is the first known workers’ compensation dispute relating to COVID-19 to go to a tribunal in Australia. The estate of the deceased worker brought a compensation claim for $834,000.00 in death benefits and $11 million in medical expenses under the Workers Compensation Act 1987.

What happened?

Mr. Georges Sara, a dental entrepreneur from Sydney, travelled to New York in July 2020 to manage the setup of an American dental facility. During the course of his trip, Mr Sara fell ill, complaining of a cough and fatigue. He passed away in November 2020 due to COVID-19 related complications.

The New South Wales Personal Injury Commission has determined that Mr Sara contracted COVID-19 during the course of his employment has a compensable injury within the meaning of the Workers Compensation Act 1987 (NSW).

Workers Compensation Act 1987

In order to establish an entitlement, the applicant needed to prove on the balance of probabilities that the virus was an injury as defined in section 4 of the Act, which states:

‘injury’:

(a)  means personal injury arising out of or in the course of employment,

(b)  includes a “disease injury”, which means:

(i)  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, and

(ii)  the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease.

If a worker is shown to have contracted COVID-19 during the course of their employment, any associated illness (e.g. respiratory illness) caused by the virus likely constitutes a ‘personal injury’ for the purposes of the Act.

How to protect your staff

Employers need to make sure they are doing everything possible to mitigate the risks of COVID-19 transmission in their workplace. Recovery Partners can provide COVID-19 services to help your business minimise COVID-19 transmissions. If your business is related to retail, hospitality, construction, aged care and other sectors at higher risk, you might want to consider employing a COVID-19 officer.

Here are some other things to consider:

• If you haven’t already done one, a risk assessment is a useful and efficient way to determine what control measures can be implemented effectively in your work environments
• Consultation with your employees can help ensure a respectful agreement is reached about WHS and COVID-19 vaccinations
• A COVID-19 Policy may help enshrine your workplace practices and procedures and give employees a framework for compliance.work