Following my review of the caselaw during 2019, in December last year I predicted we’d see an increase in WorkCover claims due to mental health injuries in 2020. However, I expected that to be an increase due to claims of being bullied and performance managed. That happened with NSW recording a 53 percent increase in psychological injury claims in the four year period from 2014/2015 year to the 2018/19 year (physical injuries rose by just 3.5 percent). Read more here.
I never anticipated the pandemic, or the size of the compounding effect it would have. US data paints a startling picture of the combined effect of working from home and the pandemic on Mental Health. Read more here. COVID-19 is having far-reaching consequences for all manner of employees. Stress claims are on the rise and people are suffering from the fact there is no longer that obvious delineation between home and work.
The new way of work
Employees are now required to work from home wherever possible. It has fast-tracked a gradual process of flexible work that had been growing as a phenomenon for the last 20 years. The changes made during the pandemic will not be reversed in our new normal world. It has placed a magnifying glass on the benefits and risks of working from home.
When will an injury which occurred at home be compensable under the WorkCover scheme? That will depend on the circumstances of each case. To be compensable, the injury must arise out of or in the course of employment, that is, the injury needs to be connected to the situation the employer created. That can pose many and varied complications in the current climate where the majority of employees are required to work from home and are often working unusual hours to cater for family responsibilities during normal working hours.
In June 2020 the NSW Court of Appeal determined the tragic case of Workers Compensation Nominal Insurer v Hill and awarded compensation to the dependents of Ms Carroll killed by her de facto husband Mr Hill. The couple worked for the same financial planning business and were working at home when Hill attacked and killed Carroll because of his paranoid delusions that she was conspiring to steal his clients and ruin him. The Court held the employer responsible because there was a “palpable and direct connection between Mr Hill’s delusions, Ms Carroll’s employment and the harm suffered by her”. She was killed when she was either working or on call and Hill’s beliefs related to the way she performed her duties.
This does not mean all employers are liable for all injuries at home, but they likely will be unless the injury is sustained during an interval or between two discreet periods of work, the employer has carried out a risk assessment of physical, social and psychosocial risks, and has clear policies that create separation at home between work and being off-work.
Claims can be easier to determine for a physical injury arising from a single incident, but mental health injuries won’t be straight forward at all. The industry with the highest number of accepted stress claims is education (teachers) with healthcare coming a close second. Many people from many industries are being affected and are bringing successful WorkCover claims.
What can my business do to limit exposure to claims and protect the health of our staff?
You can and must:
- Undertake the dual risk assessment. Physical circumstances of work (for example ergonomics) and social, psychosocial and emotional risk assessment (see FCW example). The assessment must have controls of regular checks and re-assessment. Home is not a safe place. It is full of stressors and needs regular and structured review.
- Safety Law requires the monitoring of employee health. The formal method of risk assessment is a structured and deliberate process. But it is also a weekly, daily and by the hour approach requiring supervisor engagement and inquiry. Again, a very deliberate process. Supervisors must stay engaged and ask employees direct questions about their situation to ensure they’re working in a safe environment.
- Speak to employees about how the job design (what they do), how the practices and processes impact them. and how they could do it better. This will benefit them and the organisation. How work is done is the major stressor for psychological injury. It also helps to separate work from home wherever possible.
- Provide skilled support that is integrated into the business so the issues are known within the business and acted upon. Managers and supervisors need to be trained how to identify problems and offer support. You can also offer access to counselling through an Employee Assistance Program.
- Choose video conferencing over telephone contact.
- Show kindness, listen, demonstrate you care, and let them know they are a valued employee.