Can your Employer request information to assess COVID-19 risks?

KEY TAKE OUTS:

1. Employers can collect information from employees or visitors if it is necessary to minimise risk to others in relation to COVID-19.
2. The information cannot be irrelevant or unreasonable

Employer’s rights regarding requesting information from employees during COVID-19

The Australian Information Commissioner advised on 18 March 2020 that employers have a right to request information from their employees during a pandemic. Employers are only able to collect as little information that is reasonably necessary for preventing or managing COVID -19. Information relevant for preventing or managing COVID-19 could include whether the employee has been in close contact or been exposed to a known case or whether the employee has travelled overseas.

The Australian Privacy Principles (APPS) in the Privacy Act 1988 (Cth) include principles to protect individual’s information pertaining to their health. However, these are overwritten if use or disclosure lessens or prevents serious threat to life, health or safety of an individual or to public health or safety.

According to the case of Knight v One Key Resources (Mining) Pty Ltd (2020), an employer who reasonably and lawfully requests information from an employee to ascertain their travel history is not in breach of APPs. This information would have allowed the business to learn of any potential exposure to COVID-19. The employee did not want to complete the survey due to privacy issues. The employer then issued the employee with a warning letter and email. Subsequently that employee was dismissed due to failure to comply. The Fair Work Commission was satisfied that the employer had a valid reason for dismissal. The request was regarding travel information and was not ‘sensitive’ information. The Fair Work Commission stated that is was not an unfair dismissal.

I am an experienced lawyer who heads the Employment Law Team. I understand that we live in unprecedented times and I am here to assist both employer and employees with their employment law needs.