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Can an employer require an employee to download the COVIDSafe App?

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On 26 April 2020 the Australian Government launched the COVIDSafe app to assist with contact tracing of COVID-19 cases in the community.

Since its release more than 5.3 million Australians have downloaded the app.

With the Federal, State and Territory Governments easing restrictions, and the provision of JobKeeper, employers are starting to return employees to the office, which has led to the question ‘Can I require my employee to download and use the COVIDSafe app?’

How does COVIDSafe work?

According to the Australian Department of Health, COVIDSafe recognises other devices with the COVIDSafe app installed and Bluetooth enabled.

When the app recognises another user who has the app installed and Bluetooth enabled, it notes the date, time, distance and duration of the contact and the other user’s reference code.

If a COVIDSafe user tests positive for COVID-19, health officials will request that they provide the encrypted contact information from the app.

Health officials will then:

(a)  use the contacts captured by the app to support their usual contact tracing

(b)  call people to let them or their parent/guardian know they may have been exposed

(c)  offer advice on next steps, including:

         –  what to look out for

         –  when, how and where to get tested

         –  what to do to protect friends and family from exposure

Prohibition on requiring persons to download or use COVIDSafe

To reassure concerns about privacy and the COVIDSafe app, the Health Minister, on 25 April 2020, made the Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 (‘Determination’).

On 14 May 2020, the Australian Government passed the Privacy Amendment (Public Health Contact Information) Bill 2020 (‘Bill’), which upon receiving royal assent will repeal the Determination.

The Bill, which largely mirrors the Determination, sets out a range of restrictions to protect information collected by the app and to ensure use of the app is voluntary, including:

Subsection 94H(1), which provides:

A person commits an offence if the person requires another person to:

(a)  download COVIDSafe to a mobile communication device;

(b)  have COVIDSafe in operation on a communication device; or

(c)  consent to uploading COVID app data from a communication device to the National COVIDSafe Data Store; and

Section 94H(2) which provides:

A person commits an offence if the person:

(a)  refuses to enter into, or continue, a contract or arrangement with another person (including a contract of employment);

(b)  takes adverse action (within the meaning in the Fair Work Act 2009 (Cth)) against another person;

(c)  refuses to allow another person to enter:

(i)   premises that are otherwise accessible to the public; or

(ii)  premises that the other person has a right to enter;

(d)  refuses to allow another person to participate in an activity;

(e)  refuses to receive goods or services from another person or insists on providing less monetary consideration for the goods or services;

(f)  refuses to provide goods or services to another person, or insists on receiving more monetary consideration for the goods or services;

on the ground that, or on grounds that include the ground that, the other person:

(g)  has not downloaded COVIDSafe to a communication device; or

(h)  does not have COVIDSafe in operation on a communication device; or

(i)  has not consented to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

Any person found committing an offence is liable for up to 5 years in prison or a fine of up to $63,000.

What does this mean for employers?

The Bill prohibits employers from requiring their employees, or visitors who attend their place of business, to have the COVIDSafe app installed and active on their phone.

Additionally, employers cannot require an employee to download the COVIDSafe app onto a company owned device which the employee carries.

As a result, employers should tread carefully when discussing the COVIDSafe app with employees to ensure that any employee who installs and uses the app does so voluntarily.

If you have any questions in relation to COVID-19 and your workplace, please contact MST Lawyers’ Employment Law team on 61 3 8540 0296 or workplace@mst.com.au