True or false? – WIBA and employers liability and Covid-19

Much has been written and spoken about in regards to Work Injury Benefit Act (WIBA) compensation, the legal position about having insurance cover against it, whether an employee can claim for Covid-19 related illnesses and if local WIBA and Employers Liability policies have any exclusions. There is a great deal of uncertainty in our industry and, at this time, no Insurer has ‘nailed their colours to the mast’.

Firstly, most of us have seen the recent notice from DOSH (Directorate of Occupational Safety & Health Services) on returning to work. All full of good advice and guidance and, indeed, we had recently produced our own article on a related matter, and it can be found on our web site.

We believe, however, that the DOSH announcement has one slightly misleading item, point 6. In this, it states that every employer will obtain a WIBA insurance policy. Under the WIBA Act, whilst initially it stated that a policy was required, this was subsequently overturned, and the acquiring of a policy is purely optional. We strongly recommend everyone has such a policy, but we do not believe it can be made compulsory.

Furthermore, point 6 asks that the policy specifically confirms that Covid-19 illnesses are included. We do not believe this is necessary as a standard WIBA policy, will include ‘occupational illnesses’ from specific causes in a stated schedule, but then ‘any other cause’. The Insurers we have approached have agreed that there is no need to re-issue or endorse any policies.

The big ‘unknown’ however, is the ability to prove if a Covid-19 related illness was contracted at work or elsewhere. Again, from our enquiries with Insurers, their feedback is that they will be taking each case on its merits. Clearly, if someone is, say a frontline health worker and in constant contact with the virus, then there is more chance it would be deemed an ‘occupational’ disease. Where someone has been working from home for the past 3 months and has not been to their normal workplace, then it is unlikely that they would convince an Insurer they contracted the disease at work.

In essence, there are no hard and fast rules, but what we strongly recommend to all our clients, is to report any ‘suspected’ occupational diseases (it is a requirement of the Act that you do; plus report a potential claim to your Broker/Insurer and any legal claim received, should come under your Employers Liability cover, and should be passed on without answering).

If anyone has any questions regarding this, please do not hesitate to contact us.