Can I Force My Employees To Download The COVIDSafe App?

Published June 01, 2020 (last updated July 17, 2020) Author: Nicholas Hartman

Employers should proceed with caution if they choose to ask staff to download the COVIDSafe app, according to Employsure, Australia’s leading workplace relations company.

The contact-tracing app, which has been downloaded more than 6 million times since late April, has been subject to privacy concerns by those not knowing what information is collected.

COVIDSafe is a voluntary app to collect information to assist state and territory health officials when they conduct contact tracing to combat the spread of COVID-19.

In that time, there has been confusion amongst business owners into whether they can force staff to download the app or not.

“While I believe the COVIDSafe app will help increase safety in the workplace, it cannot be forced onto staff,” said Employsure Managing Director Ed Mallett.

“I was asked several weeks ago when the app was still new whether or not you could force your employees to download it as a condition of them coming back into the work. My initial view was that seemed like a sensitive subject.

“If you look at the NRL as an example, you can see the problems it has had with flu vaccinations. Some players argued against getting the jab. As a business owner, it’s a similar case when asking an employee to download the app.

“There are plenty of employees that don’t want to install it, maybe for good reason, maybe for bad. Some employers are probably asking for it to be downloaded on an employee’s personal device, sparking concerns over privacy.

“In my opinion the app is a great idea the Government is pushing that will benefit the workplace. It’s designed to help trace if any colleagues have been in contact with people with COVID-19. There is a risk that if you don’t have your employees download the app, then that contact tracing isn’t as effective and could lead to infection occurring in the workplace.

“The narrative in the media as of late seems to suggest that if an employee catches COVID-19, no matter where they got it, then their employer ends up being responsible for them and subsequently has a safety claim on their hands.

“We have already seen one city council in Sydney get in trouble for forcing their staff to download the app. They were told they were in breach of biosecurity laws and could be fined for it. A piece of legislation has since been passed through the privacy act that confirms you cannot force your staff to download the app. It confirms that if you treat an employee unfairly as a consequence of them not installing it, you could end up with a claim in the Fair Work Commission for adverse action.”

Attorney-General and IR Minister Christian Porter has stressed that employers cannot insist that employees use the Federal Government’s COVIDSafe tracing app, with breaches attracting fines of up to $63,000 and five years’ jail.

The Minister also introduced the Privacy Amendment (Public Health Contact Information) Bill 2020, which aims to ensure strong privacy protections to support the download, use and eventual decommissioning of the app.

“Although a business owner can’t legally force an employee to download the app, it doesn’t mean they can’t ask. Employers need to remember there’s a big difference between forcing someone to do something, and politely asking,” Mallett continued.

“One way they could position asking an employee to download the app is to reinforce the idea that it will benefit the team and reinforce a safer workplace. Asking, not forcing, will not constitute a fine.”

Work Device vs Personal Device:

The Privacy Amendment (Public Health Contact Information) Bill 2020 recently passed through parliament. The legislation makes it illegal to force someone to download the COVIDSafe app.

The bill states an employer cannot make downloading the COVIDSafe app a condition of employment. An employer can encourage staff to download the app, but cannot direct them to.

Employers may expose themselves to potential adverse action claims or other legal challenges if they direct a staff member to download the app, regardless of whether that staff member is using a privately-owned or company-owned device.

Breaches to the legislation could attract fines of up to $63,000 and five years jail.

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