The Case

Sara v G & S Sara Pty Ltd (2021)

G & S Sara Pty Ltd (G & S) employed Mr Sara as a dental technician. Mr Sara was required to travel to the USA on a work trip in July 2020. Mr Sara contracted COVID-19 during the trip. He became extremely unwell and died in November 2020 in New York from complications arising from COVID-19.

Mr Sara’s widow, Mrs Sara, commenced a workers’ compensation claim against G & S. G & S argued that Mr Sara did not contract COVID-19 in the course of his employment.

The Verdict

The Personal Injury Commission of NSW (PICNSW) agreed that certain aspects of Mr Sara’s trip to the USA could not be considered to have occurred during his employment. However, it was ascertained that Mr Sara caught the COVID-19 virus while he was travelling to the USA – the period between boarding his flight in Sydney and arriving in the USA – which was within the course of his employment.

The PICNSW found:

• Mr Sara suffered the ‘injury’ within the course of his employment; and
• Mrs Sara was entitled to the lump sum death benefit and weekly compensation.

The Lessons

This case is a timely reminder of employers’ work health and safety obligations to their employees, including the risk of contracting COVID-19 in the workplace. It also demonstrates that COVID-19 can be a compensable workplace injury.

Some employers may argue that since COVID-19 can be a compensable workplace injury, a direction for mandatory vaccinations is reasonable. Each workplace will need to consider its own individual circumstances to determine if mandatory vaccinations are appropriate. For example, consider whether you should have processes in place to:

• review vaccination medical exemptions;
• determine whether work can be performed safely remotely (or otherwise); and
• determine whether taking other work health and safety steps will sufficiently reduce the risk of contracting COVID-19 without requiring your employees to be vaccinated.

Please note: Case law is reported as correct and current at time of publishing. Be aware that cases in lower courts may be appealed and decisions subsequently overturned.