Replay: Workplace Risk Issues for Care Facilities During COVID-19

As part of a Q&A Forum for Care organisations, titled “A Case Study of Risks from an Outbreak of COVID-19 in a Care Facility”, the third instalment of the series, hosted on Wednesday the 7^th of May, is now available for replay, with key summary notes included below.

Lyle Steffensen, National Practice Leader for Care Solutions at Marsh, interviewed Claire Chalmers and Katherine Lamont, from Marsh’s Workforce Strategies Practice Group. Claire is a senior consultant in workforce strategies at Marsh, who has over 10 years in workers' compensation experience, focusing on improving employers’ performance and reducing premium exposure. Katherine leads the NSW team for workforce strategies and has been in the industry for 8 years.

The Q&A forum focused on the Exponential Pandemic Growth & Business Interruption phase of the pandemic risk lifecycle, as well as employee wellbeing and productivity challenges during a pandemic.

LS: Could you share with us how we best protect our employees in the current environment (COVID-19)?

KL: In regards to protecting your team, it is important to have clear communication, especially with staff on the ground or front line. The reason for this is to combat potential emotional distress and anxiety, especially in sectors where staff may be at higher risk of contracting COVID-19. The best way to assist with this overwhelming fatigue is to stay in regular contact either over the phone or on meeting programs such as Zoom or Business Skype. Organisations need to acknowledge that it is normal to feel anxious and stressed and provide information in regards to Employee Assistance Programs.

LS: Do you mind explaining what the Employment Assistance Program (EAP) is, for those who may not know?

KL: It is a confidential psychological counselling service. It is for employees who are struggling with issues whether it be work related or personal.

LS: What happens if an employee has an active workers compensation claim, do we need to provide suitable duties instead of Jobkeeper?

CC: In relation to providing suitable duties, most of the care industry have ongoing requirements to provide service, so organisations should continue to have suitable duties available. If they do not provide that service, Jobkeeper will come into place. Although Jobkeeper will not be available for those who are unfit for work, employees would be paid their full workers compensation benefit. If an employee is fit for suitable duties, the Jobkeeper would be considered an earning in most jurisdictions. The best advice would be to continue to provide suitable duties so the employee can continue to recover from their injury and get back to their normal capacity.

LS: If you have a staff member that contracts COVID-19 in a facility, is that a cause for actually making an active workers compensation claim?

** Update since our Q&A – In NSW the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Bill 2020 (NSW) was implemented. This legislation change has named 14 industries where COVID claims are presumed work related unless the employer can prove otherwise. Aged Care, Disability Care and Child Care industries all fall into this cohort of industries which means if an employee contracts COVID-19 and has been at work during the incubation period, it is presumed the employee contracted COVID-19 at work and acceptance is automatic (a confirmed diagnosis is required).

KL: Yes, although whether that claim is accepted is dependent upon the circumstances of each case, and which state the facility is based in. There are some states that have a tougher approach to accepting claims than others. There are two aspects to the claim:

• Physical claim from contracting the virus. For that to be accepted there would have to be a clear link between employment and the virus being contracted. For example, if there is an outbreak at a facility and another staff member contracts it, it is quite clear that they have probably contracted the virus from their employment. Hence, the physical claim being activated.
• Psychological injury claims. Some individuals are placing claims in regards to stress because they are at a higher risk of contracting the virus due to their employment. Once again it depends on the state, for example in NSW, stress is not a diagnosable condition, so the claim may be rejected.

Ultimately, it is very important for the claim to be submitted, to make sure that the worker receives cover or care if needed. It is then left to the insurer to take care of the liability aspect.

LS: How will COVID-19 impact premium?

CC: The premiums are driven by three factors:

1.      Rates: It is too early to tell how insurers are responding to the rates during Covid-19. Rates are expected to be released in June.

*Update – We have just been informed that NSW premium rates (LPR and Conventional) will remain as per 2019/20 for 2020/21. Planned increases to LPR adjustment rates, Scheme Performance Measure and Industry Classification rates, will not be implemented, with iCare citing challenges faced by businesses due to Covid-19 as the reason for the hold.  

2.      The organisations remuneration: If you have high fluctuation in wages, this will impact the forecast.

3.      Claims costs and experience: Clarification is being sought if COVID claims will be premium impacting or not. SIRA in NSW has indicated it is reviewing the premium impact of COVID claims, we are seeking an official position on this. However, non COVID-19 claims that occur during this period will still affect premium. If organisations are unable to provide suitable duties for an active claim, it could lead to an increase in the payments a worker is entitled to. That would in turn increase the cost of that claim. Delays and longevity of treatment may also increase the cost of that claim.

LS: You spoke about claims, what about when a person contracts COVID-19 but they work for different providers or in different facilities. How is that treated from a workers compensation perspective?

KL: The liability for the claim itself will sit with the employer where the employee contracted that illness. For the safety of the residents, clients and workforce, it would be common sense to not let that person back into the workforce until healthy. Employee’s wages and their pre injury average earnings, which is used to determine how much income they receive for a claim, does factor in second employment. The answers are very different in different situations. If anyone would like to work through specifics, please contact Katherine Lamont and or Claire Chalmers.

LS: Another concern is people coming from an employer agency, where does the workers compensation liability sit for those employees. Particularly for workers replacing employees that have contracted Covid-19?

In the majority of states apart from WA, a host employer will not take on the liability for labour hire employees. In other words, the labour hire company cannot contract out their liability. That is legislation and the labour hire company will be liable. Although, if the host employer has put the labour hire worker at risk of injury, even if it is not COVID-19 related, for example a slip or fall, the labour hire company may seek recovery from the host employer because they have been negligent in providing a safe environment. Organisations should, from a health and safety point of view, protect labour hire as if they are one of their own employees. However, the liability of the claim would sit with the labour hire company unless they chose to pursue recoveries.

If you would like additional information on workforce risks for care organisations, please contact us.

The information contained in this publication provides only a general overview of subjects covered, is not intended to be taken as advice regarding any individual situation and should not be relied upon as such. Insureds should consult their insurance and legal advisors regarding specific coverage issues. Statements concerning legal matters should be understood to be general observations based solely on our experience as insurance brokers and risk consultants and should not be relied upon as legal advice, which we are not authorised to provide. All such matters should be reviewed with your own qualified legal advisors.