If an employee has an adverse reaction to a COVID-19 vaccine after being directed to be vaccinated by the employer or contracts COVID-19 while discharging duties as an employee, then given they have suffered an “injury” and it is sustained “in the course of employment”, there could be a compensable workers’ compensation claim. We consider such a claim would be more likely in instances where employers mandate COVID-19 vaccinations or run workplace COVID-19 vaccine programs and employees who then receive a COVID-19 vaccination suffer an injury as a result.
As an alternative, administrative option to seeking compensation, rather than complex and costly court processes, the Federal Government are in the process of implementing a COVID-19 Vaccine Claims Scheme (Scheme) following consultation with peak medical, healthcare, business and insurance sectors, with some limited details surrounding the Scheme released by the Government today.
The Scheme will provide Australians with access to compensation for claims related to the administration of a Therapeutic Goods Administration (TGA) approved COVID-19 vaccine delivered through a Commonwealth Government approved program (COVID-19 Vaccine), irrespective of where that vaccination occurs.
Scheme Details and Administration
From 6 September 2021, Australians who suffer injury or loss of income due to the administration of a COVID-19 Vaccine or due to an adverse event that is considered to be caused by a COVID-19 Vaccine, will be able to register their intent to claim from the Scheme’s webpage. In parallel, the Federal Government is also developing a portal to formally submit claims and documentation, and those who register their intent to claim will be contacted once this portal has been established and they are able to submit the formal claim. Evidence of an adverse event is not required when registering intent to claim.
The Scheme will cover the costs of injuries above $5,000 due to a proven adverse reaction to a COVID-19 Vaccine. The TGA will provide guidance on recognised adverse reactions as part of their established surveillance program, and claims will be assessed by independent experts, with compensation paid based on their recommendations.
The Scheme will be backdated to 22 February 2021 and will be administered by Services Australia.
Once the claims portal has been established, in submitting claims between $5,000 and $20,000, claimants need to have been hospitalised for at least one night, will need to nominate they are seeking less than $20,000 and provide applicable evidence of:
- The nature of the injury and medical documentation of its likely relationship to a COVID-19 Vaccine.
- Hospitalisation, due to a vaccine-related injury.
- Medical costs and lost wages.
The evidence requirements to be submitted for claims $20,000 and over, including death, are still being developed and will be advised as part of additional information on the scheme in the future. Claims relating to a death will not require evidence of hospitalisation.
Interaction with Workers’ Compensation
While serious and life-threatening side effects from COVID-19 Vaccines are considered rare, we understand the Scheme will not act as a complete indemnification for employers (ie secure employers against legal liability) from all workers’ compensation claims, unless the Federal Government or relevant authorities later provides otherwise. Potential claimants accessing the Scheme will still have the option of pursuing action through a court judgment if that is their preference.
Despite this, the Scheme provides a much quicker and simpler way for employees to receive access to compensation, which we expect will make formal workers’ compensation and other legal claims relating to COVID-19 Vaccines less likely.
In addition, the Scheme reduces the commercial risk involved with employers mandating COVID-19 vaccinations in the workplace (noting there are still legal risks, which can be read about in our earlier article here).
As a result, we expect the Scheme will further encourage employers to consider mandating vaccinations in the workplace, particularly in light of a recent decision by the NSW Personal Injury Commission finding the death of a NSW worker who contracted COVID-19 on a work trip to New York in 2020 was found to have occurred in the course of his employment, entitling his widow to death benefits and possibly more than $15 million in medical expenses.
Lessons for Employers
In summary, employers should:
- consider communicating with their workplace about the Scheme so that employees know they have an alternative, easier avenue for receiving compensation rather than through instituting a legal claim should they suffer an injury associated with the COVID-19 vaccine if mandated in the workplace, and/or contract COVID-19 in the course of their duties.
- be aware that the Scheme may not be a no-fault indemnity scheme in the traditional sense, and employees may still be able to lodge workers’ compensation or legal claims in response to adverse reactions to a COVID-19 vaccine, unless otherwise confirmed by the relevant government authority.
- have a process in place to record and address where an employee suffers an injury associated with the COVID-19 vaccine if mandated in the workplace, and/or contracts COVID-19 in the course of their duties, including to accommodate time off work (whether paid or unpaid).