Presumptive workers’ compensation protections for workers contracting COVID-19 do not apply to vaccine injuries or side effects, according to WorkCover WA.

In light of the WA State Government, along with some some employers, mandating that workers in certain industries obtain a COVID-19 vaccination, employers and workers have sought clarification on whether workers can lodge a compensation claim if they have an adverse reaction to a vaccine.

WorkCover say that while COVID-19 vaccines are safe and effective, a small percentage of people may experience more significant side effects. In certain circumstances an adverse reaction to a COVID-19 vaccine resulting in injury/ disease may be covered by workers’ compensation.

Under the Workers’ Compensation and Injury Management Act 1981, for a worker to make a successful workers’ compensation claim for a COVID-19 vaccine related injury or disease, the approved insurer needs to be satisfied that:

• The vaccine injury arose in, or out of, the course of the worker’s employment;
• For a disease, the worker’s employment must also be shown to be a significant contributing factor to the disease.

WorkCover WA said it is possible that the requirement to connect the COVID-19 vaccine injury or disease to the worker’s employment would be satisfied where the vaccine is a mandatory requirement or condition of the worker’s employment.

However, this is an unsettled area of law and it is not possible to provide definitive advice about the effect of mandatory vaccinations on an employer’s liability to pay compensation for a COVID-19 vaccine related injury or disease.

The legislated rebuttable presumption of work injury that applies when a health care worker contracts COVID-19 does not apply to a COVID-19 vaccine related injury or disease.

It’s important to note that the federal government has developed a COVID-19 vaccine claims indemnity scheme to reimburse people who suffer a moderate to significant injury following an adverse reaction to an approved COVID-19 vaccine.

Details on the Commonwealth scheme can be found here.

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Can Employers Enforce Mandatory Vaccinations? On November 18, Brian Jackson (Employment Lawyer from Moray & Agnew Lawyers) will present a free webinar on this important topic so that employers know how to proceed and avoid claims and HR related risks. Register here.

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