Adverse Health Reaction to a COVID Vaccine taken for my Work – Am I Covered?

Questions that may arise as Healthcare Professionals needing to get the COVID Vaccination

Written and co-authored by:

Scott Mcswan Principal /Director WorkLegal 

Dr. Anchita Karmakar Medicolegal Liaison Officer/Law Graduate WorkLegal 

During the recent lock down in Brisbane, media reported the Chief Medical Officer as stating that nearly 80% of frontline healthcare professionals have been vaccinated.  At around that time public hospital staff were notified of the importance to be vaccinated, especially if they hold a position where they would be exposed to COVID patients (i.e. in an ED setting or in a COVID ward).  I for one had no hesitation getting the vaccination as I did not have any contraindications or concerns, so right after, I attended my hospital organized vaccination program and received my vaccine. 

 There was a massive surge of staff vaccinations.  PA Hospital in Brisbane was the only center which offered the Pfizer vaccination for their staff.  The rest of the workers were offered and given Astra Zeneca - regardless of age group.  Risk stratifications and consent were obtained from individuals and off we went. 

Literally a day after I received my vaccination, in a public health announcement the Premier stated that there are concerns about the Astra Zena Vaccine for people aged under 50. Although I knew the pros cons and relative risks of both vaccines, it still got me, and my loved ones slightly confused and perhaps concerned. Many of my colleagues have told me about anxiety, stress and confusion amongst not only their patients who were going to receive their vaccinations in the near future but also their colleagues who felt they had been rushed into getting these vaccinations. Although current evidence indicates that the likelihood of adverse reaction from AstraZeneca is lower than a potential side effect of clots from taking the oral contraceptive pill, and in fact the other brands also carry similar if not equivalent risks of clots and complications, many feel anxious about the limited data and precedent for this vaccine.   

One of the first few phone calls I received after the vaccines roll out and Astra Zeneca saga went like this:

“I’m very stressed. I got that damn vaccine but I’m worried. My boss told me it was mandatory if I want to keep working in the role I am in and I didn’t really think much and just got the vaccine. But now the government is saying it may cause clots. I didn’t want to lose my job, but I feel I didn’t really know all the risks. And how come some of our colleagues got the other vaccine and we didn’t? And what will happen if I do get sick!! Who is responsible for all this?”

At the end of the day, what are we worried about? For many the concern revolves around income capacity and how a potential adverse reaction may affect my ability to earn a living. Or if I am in the small population of people who experiences serious adverse reactions, what financial support is available to me? Who is going to pay my mortgage and put food on the table if I am incapacitated? Can I make a workers’ compensation claim? Will I be covered under my external and or superannuation-based income protection/trauma cover/life insurance scheme?  

These are all legitimate concerns, and the reality is that no single answer will cover everyone’s situation.

However, there are answers to some of the questions that are being asked, and understanding your rights, where to look for the information and knowing who to seek help has helped me immensely. In this and subsequent articles, with the help of my boss, I hope we can provide you all with some much-needed information. 

This article overviews applying for workers’ compensation for an adverse reaction to COVID 19 vaccine. Caveat, this is obviously not legal advice specific to your situation, and yes, you will all need to seek individual legal advice. 

I have heard some people say that workers’ compensation and insurances will not cover for adverse outcomes. That “advice” is incorrect for many situations.

Here is what WorkCover says about workers’ compensation in QLD[i]:

In the event that a Queensland worker lodges a claim for an adverse reaction to the COVID-19 vaccination, WorkCover will determine the claim like any other claim, paying particular attention to whether the worker’s employment was a significant contributing factor to the injury (as per section 32 of the Workers’ Compensation and Rehabilitation Act 2003).

Here is what iCare says about the situation in NSW[ii]:

“In some circumstances an adverse reaction to the COVID-19 vaccination may be a compensable workplace injury. To be compensable, your work activities must be proven to be a substantial or main contributing factor to the injury. 

When lodging a claim for an adverse reaction to the COVID-19 vaccination that is work related, medical information will need to be provided showing an injury or illness has been sustained. Normal side effects of the vaccine such as feeling unwell or sore temporarily, will not be compensable.

If you want to lodge a claim for a work-related adverse reaction to the COVID-19 vaccination, please follow the usual claim lodgment process.”

Clearly those workers’ compensation authorities are acknowledging that sometimes they will cover applications for workers’ compensation for an adverse reaction to the COVID 19 vaccination.

What is Worker’s Compensation?

Workers’ compensation is mandatory insurance placed by an employer through a workers’ compensation insurer to cover employers for the medical costs and lost wages for their workers where a worker has a work-related injury.

Must my Employer have Workers’ Compensation?

Yes, all employers should have workers’ compensation as required in their state or territory.

Is the Workers’ Compensation Insurer for my employer a Private Company or the State or Territory Government?

That can depend upon the state or territory you are working in. Also some very large employers are able to self-insure or opt into the national Comcare workers’ compensation system. Each state or territory’s governing authority and Comcare has a website with fact sheets explaining information relevant to their jurisdiction.

Who are the Governing Workers’ Compensation Authorities?

§ Australian Capital Territory: WorkSafe ACT 

§ New South Wales: State Insurance Regulatory Authority (NSW) 

§ Northern Territory: NT WorkSafe 

§ Norfolk Island: Norfolk Island Workers Compensation Agency 

§ Queensland: WorkCover Queensland 

§ South Australia: ReturnToWork SA 

§ Tasmania: WorkCover Tasmania 

§ Victoria: WorkSafe Victoria 

§ Western Australia: WorkCover WA  

For Australian Government employees and for the employees of organisations which self-insure under the scheme, contact Comcare (Commonwealth). 

Is Everyone who Works at a Workplace Automatically Covered?

Not necessarily. For example, in Queensland, only “workers” are covered. The Worksafe Queensland website describes “workers” as[iii]:

“All PAYG employees and some contractors are generally considered workers. But the legal definition can be complex and there are some exceptions to the rule.

Some people are not considered workers under the Act, for the purposes of workers’ compensation, and there are specific inclusions and exclusions.

As set out in the Workers' Compensation and Rehabilitation Act 2003, a worker is:

·        only an individual, not a corporation, partnership or trust (sole traders may be considered workers)

·        a ‘person who works under a contract and, in relation to the work, is an employee for the purpose of assessment for PAYG withholding

·        someone who works under a ‘contract of service’, like a sub-contractor. This worker may do the same work as an employee and could also be a worker under the Act.

A 'contract of service' is the contract between employer and employee. This is how most employers employ their workers. It's not the same as a 'contract for services', which is generally an arrangement with a contractor.

There are simple tests you can apply to help you work out who is considered a worker and who isn’t.”

Put simply, if you are a PAYG employee then you are a “worker”. Otherwise you may not be, and you should take advice about your situation.

If I am a Worker, When am I Covered by Workers’ Compensation for an Adverse COVID 19 Vaccine Reaction?

As quoted above, Worker Queensland has stated their position as, “WorkCover will determine the claim like any other claim, paying particular attention to whether the worker’s employment was a significant contributing factor to the injury…”

Very often the key question will be, was your employment a significant contributing factor to the injury?

Evidence to support an application for worker’s compensation for an adverse COVID 19 vaccine reaction may include:

·        Email from your employer asking you to get a vaccine;

·        Your diary notes of a workplace meeting in which you are asked to get a vaccine;

·        If the vaccine is given to you at your workplace;

·        If your employer arranged your vaccination.

You should keep those kinds of records so they are immediately available to lodge with an application for workers’ compensation if you have an adverse health reaction.

When Should I Apply?

A Workers’ Compensation claim must be made within six months of the date of injury. Although this six month time limit may be extended in certain circumstances, it is recommended to lodge an application as soon as possible and well within the time limit.

What if I am a Self-Employed and not a “Worker”?

You should heed this warning contained on the Worksafe Qld website[iv]:

“As an employer, you must insure your workers against work-related injury or illness with an Accident Insurance Policy. But, if you're a director, partner of a partnership, sole trader or trustee, you won't be covered by it.”

Self-employed people who are not “workers” (and thus not covered by workers’ compensation) will often have income protection insurance, and they should ask their insurance broker or insurer to advise if they will be covered for an adverse health reaction to a COVID-19 vaccine.

However many income protection policies will have a lengthy waiting period - 3 months is usual – and will not cover medical treatment expenses at all.

Another option for those persons to consider is to take out their own worker’s compensation policy, which will give them most of the protections of a “worker”.  In Queensland that is called “personal injury insurance” and some details about that are at:   Workplace personal injury insurance | WorkSafe.qld.gov.au

 Conclusion

Unfortunately, as individual circumstances differ, there is no one answer for everyone’s situation and you should consider taking proper legal advice and insurance advice about these issues. 

Here are the following steps I would consider taking:

1.     Ascertain if you are covered by a worker’s compensation policy as a “worker”. If you are a PAYG employee you should be covered by your employer’s policy.

2.     If you are not a “worker”, get your own insurance advice about suitable income protection and other insurance coverage including optional personal injury insurance available from a workers’ compensation insurer; and

3.     If you have a COVID-19 vaccine for work purposes, keep the kinds of records and evidence explained above so you can provide them with your application if you need to apply for workers’ compensation because of an adverse reaction to the vaccine.

 References:

[i] Worksafe website, Queensland: COVID-19 vaccines and your workplace health and safety obligations | WorkSafe.qld.gov.au

[ii] iCare website: icare Coronavirus information for injured workers | icare (nsw.gov.au)

[iii] Worksafe website, Queensland: https://www.worksafe.qld.gov.au/claims-and-insurance/workcover-insurance/who-should-i-cover

[iv] Worksafe website, Queensland: Workplace personal injury insurance | WorkSafe.qld.gov.au