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While the COVIDSafe App may seem like a good way to comply with workplace health and safety requirements, there are some important restrictions on an employers’ ability to force or coerce employees into downloading or using – even on company provided phones.   Following from our previous EMA Notes which include guidance on the employer’s duty of care to their employees, employers may now want their employees to download the Government’s COVIDSafe app. While this may be considered a ‘reasonable step’ to take in the pursuit of workplace health and safety, it is important to know that employers cannot require an employee to download, use, or upload tracking data from the COVIDSafe app.

The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 (Cth) places explicit restrictions on ‘coercing’ the use of the COVIDSafe app.1 Summarised, this determination restricts a person (including an employer) from:

• requiring an employee to download, have, or upload data from the COVIDSafe app; and
• on grounds of a person not having downloaded, having, or uploading data from the COVIDSafe app: refusing to enter into a contract (including a contract of employment); taking adverse action (within the meaning of the FW Act); refusing to allow another person to enter premises or participate in an activity; or refusing to provide or receive goods or services to or from a person. A contravention of this Direction is an offence, carrying a maximum penalty (as of the date of this EMA Note) of five years imprisonment, $63,000, or both.2

There is no exemption for company-owned smartphones; the restrictions still apply.

If an employer wishes to introduce usage of the COVIDSafe app in the workplace, they can request and encourage employees download and use the app, but it must be clear to the employee that it is optional and that no action will be taken against them for refusing. Additionally, employers cannot restrict employees from entering the workplace for not downloading or using the app.

Require further information/assistance? If you require further information or advice, please contact one of our consultants.
1 Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements—Public Health Contact Information) Determination 2020 (Cth) s 9.
2 Biosecurity Act 2015 (Cth) s 479.
     
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