Following on from our most recent article on whether employers can mandate vaccinations against COVID-19, employers need to consider their position should an employee contract the virus during the course of their employment and raise a workers' compensation claim. In addition, employers need to consider whether their public liability insurance will respond to claims by suppliers, clients and other contacts of their organisation who may contract the virus during their interaction with an employee.
In this article, insurance law Partner, Cameron Seymour, discusses the need for employers to review their insurance policies to ensure they are capable of responding to any COVID-19 claims.
In Queensland, it is compulsory for employers to be insured for any liability the employer may have for injury suffered by their workers in the course of their employment. Workers who suffer injury in the course of their employment are entitled to 'compensation' without having to prove fault. Employees may also be entitled to 'damages' if they can prove the injury occurred as a result of their employer's negligence. 'Injury' is defined to include disease.
It is possible for employees to institute workers' compensation claims arising from contracting COVID-19 during their employment. Workers' compensation claims will likely also extend to claims for injuries arising from side-effects caused by the COVID-19 vaccination where the employer imposed a mandatory vaccination policy.
There have been cases where employees have contracted waterborne, mud-borne, blood-borne, or airborne diseases during their employment and successfully recovered damages from their employer. By extension, it is conceivable that an employee who has contracted COVID-19 during the course of their employment is able to make a claim for damages where the employer has failed to take reasonable steps to minimise the risk of employees contracting COVID-19.
Employers also need to ensure they have sufficient public liability insurance cover. Public liability insurance needs to be in place to respond to any claim by a person, client or contractor (who is not the employer's employee) who contracts COVID-19 as a result of the employer's, or their employee's actions in the course of their employment (i.e. during meetings, events, client contact, training etc). The person, client or contractor could conceivably seek to hold the employer vicariously liable for transmission by its worker.
It is important that employers review the scope, exclusions and definitions in public liability insurance policies and ascertain whether they will be insured for a damages claim made by a non-employee who contracts COVID-19 due to the employer's, or one of their worker's negligence.
As the debate continues about whether or not organisations and employers should mandate vaccinations, the debate is somewhat academic if you do not hold an insurance policy that will respond to a claim.
If you aren't sure whether your organisation's insurance policies respond to COVID-19 claims, please contact me.
For a review of your organisation's internal policies and procedures to minimise the risk of staff or others contracting COVID-19, please contact my Industrial Relations partner, Sam McIvor.
This article was written by Cameron Seymour (Partner).
"The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication."