The Australian government’s strong advocacy for the use of its new tracking app ‘COVIDSafe’ has presented a new COVID-19 issue for employers.
COVIDSafe is being promoted as a way to keep ‘yourself and your community safe’. Given the workplace safety risk of COVID-19 for almost all workplaces (and their clients and customers), should employers be directing their employees to download COVIDSafe to make their workplaces safer? Can employers make such a direction? What if the phone is owned by the employer?
Mandatory downloads are prohibited
The short answer is no. The app is not mandatory and requiring a person to download it is prohibited at law.
This prohibition is found within the terms of theBiosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 (Determination).
The Determination makes it clear that a ‘Person’ (including an employer) cannot require anyone (including employees) to:
download COVIDSafe; or
have COVIDSafe in operation on a mobile telecommunications device; or
consent to uploading COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store;
collect, use or disclose any data from the COVIDSafe app (unless they are one of the authorities permitted to do so in the Determination)
There are also prohibitions on treating a person adversely because they have not downloaded the app.
A person (including an employer) must not:
refuse to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or
take "adverse action" (as defined by the Fair Work Act 2009 (Cth)) against another person; or
refuse to allow another person to enter premises; or
refuse to allow another person to participate in an activity; or
refuse to receive goods or services from another person; or
refuse to provide goods or services to another person
Because the other person:
has not downloaded COVIDSafe; or
does not have COVIDSafe in operation on a mobile telecommunications device; or
does not consent to uploading COVID app data from a mobile telecommunications device to the National COVIDSafe Data Store.
The penalties for a breach are significant, with a maximum of five years of imprisonment or 300 penalty units ($63,000), or both.
Should employers encourage downloading of the app?
While downloading COVIDSafe will not prevent a user from contracting COVID-19, it will alert users whether they have been in contact with someone who is COVID-19 positive. This may allow a user to prevent the spread of COVID-19 to other persons including those within the workplace or customer base.
As a general principle, employers must do all that is reasonably practicable to ensure the safety of the workplace and workers. While it is not reasonably practicable (or indeed lawful) to require employees to download the COVIDSafe currently, many employers are strongly encouraging employees to download COVIDSafe. This could be one step (of many) that employers can consider to make their workplaces safer in the post-COVID world.
As businesses are now facing the possibility of returning to the workplace in some form, employers should be careful when considering directing staff to download the COVIDSafe app.
This article was first published by Australian Business Lawyers & Advisors.