Wednesday, 13 May 2020

Directing employees to download the COVIDSafe app

On 26 April 2020, the Australian Government launched the new coronavirus app, COVIDSafe.

Once installed on a mobile telecommunications device, the COVIDSafe app uses Bluetooth to look for other devices that also have the app installed and it then securely makes a ‘digital handshake’, which notes the date and time, distance and duration of the contact. Where it is determined through tracing via the COVIDSafe app that an individual has come into contact with or exposed to COVID-19, the COVIDSafe app will assist state and territory health officials to quickly contact people who may have been exposed and prevent further infection.

The Chief Medical Officer has advised Australians that the more people who download the COVIDSafe app, “the safer they and their family will be, the safer their community will be and the sooner we can safely lift restrictions and get back to business and do the things we love”.

Can an employer direct its employees to download and use the COVIDSafe app?

In an effort to comply with their safety obligations under Workplace Health and Safety legislation with regard to coronavirus, many employers have questioned whether they can issue a lawful and reasonable direction staff to download and use the COVIDSafe App, including on both an employee’s personal device or a work-issued device.

On 25 April 2020, the Health Minister made a determination under the Biosecurity Act 2015 (Cth) in relation to the COVIDSafe app (Biosecurity Determination) which provides that a person must not require that another person download or use the COVIDSafe on a mobile telecommunications device.

Where a person has not downloaded or does not use the COVIDSafe app, the Biosecurity Determination strictly prohibits employers from:

  • refusing to enter into, or continue, a contract or arrangement with another person (including a contract of employment);
  • taking adverse action (as defined in the Fair Work Act 2009 (Cth)) against another person, including an employee or prospective employee;
  • refusing to allow another person to enter premises;
  • refusing to allow another person to participate in an activity;

on grounds that the employee or prospective employee:

  • has not downloaded COVIDSafe to a mobile telecommunications device; or
  • does not have COVIDSafe in operation on a mobile telecommunications device; or
  • has not consented to uploading COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store.

These protections also extend to customers, suppliers and contractors, and a business or individual cannot refuse to receive or provide goods and services to another person or business due to the above grounds.

The Australian Government has also now developed draft legislation, the Privacy Amendment (Public Health Contact Information) Bill 2020, which will emphasise all the requirements under the Biosecurity Determination and introduce further protections. In summary, the important changes in the draft legislation from an employment perspective include that:

  • The Office of the Australian Information Commissioner (OAIC) will oversee the implementation of the COVIDSafe app and will manage complaints about any mishandling of COVIDSafe data and have the power to conduct assessments in relation to the maintenance and handling of COVIDSafe data.
  • User data from the COVIDSafe app will be deleted upon request by the user.
  • An individual will be required to delete COVIDSafe data if they receive it in error.
  • No data can be collected from users who have chosen to delete COVIDSafe.
  • There will be a process whereby COVIDSafe data will be deleted at the end of the COVID-19 pandemic and users will be notified accordingly.

The legislation is to be introduced in Parliament by Friday 15 May 2020.

Should an employer breach the restrictions in the Biosecurity Determination or the primary legislation, the employee or prospective employee may have grounds to make a “general protections” claim with the Fair Work Commission.

Further, breaches of the Biosecurity Determination or the primary legislation may also constitute a criminal offence which would attract a maximum of 5 years imprisonment or a fine of 300 penalty units (approximately $63,000).​​​​​​​​​​

What do employers need to do?

In summary, employers may encourage employees to make a personal decision to download and use the COVIDSafe app and emphasise the benefits of doing so. However, employers will be prohibited from acting adversely against, or taking disciplinary action against an employee for failing or choosing not to do so.

Employers should take care to ensure that any encouragement to an employee to download the COVIDSafe app does not amount to coercion, and any employees who choose not to download or use the app must not be treating unfavourably as a result.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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