Assessing your COVID-19 risks – what information can you request from your employees?
In line with their occupational health and safety obligations, employers have been forced to consider how they manage the health and safety risks in their workplaces which are presented by the pandemic. This issue has been brought into even sharper focus with the recent outbreaks of COVID-19 in various declared “hotspots” around Melbourne.
Of particular concern is the level to which employers can request information from employees about their COVID-19 exposure and the employer’s ability to use and/or disclose that information.
The Australian Information Commissioner, who oversees compliance with the Privacy Act 1988 has recently confirmed that employers can collect information in relation to COVID-19 from its employees but only to the extent that it is reasonably necessary to identify COVID-19 risks and implement appropriate controls to prevent or manage them.
In a practical sense, this includes asking employees about whether they have been in close contact with a confirmed COVID-19 case, enquiring whether the employee has recently travelled to overseas destinations and if so, which ones and, in more recent times, whether they live in or have travelled to a declared local “hotspot” within the past 14 days. Other relevant information might include whether the employee has some condition which renders them more vulnerable to the effects of COVID-19.
This information can reasonably be considered “health information” under the Privacy Act which ordinarily means that it’s collection, use and disclosure is quite protected in this can only be done with the consent of the employee. There is often significant “push back” by employees in relation to such information on privacy grounds.
Fortunately for employers, there is an exception under the Privacy Act which allows for the collection, use and disclosure of health information without consent if it would be unreasonable or impractical to obtain the consent and the collection, use or disclosure lessens or prevents a serious threat to life or the health or safety of an individual or the public.
The Australian Information Commissioner’s views were echoed by the Fair Work Commission on 29 June 2020 when Commissioner Simpson handed down his decision in Knight v One Key Resources (Mining) Pty Ltd. In that case, an employee was dismissed because he refused the employer’s lawful direction to complete a survey to enable the business to ascertain any potential exposure for all employees to COVID-19 in the workplace. The Commission found that the dismissal was not unfair as the employer had not asked for sensitive health information, it did not ask for a description of any symptoms the employee may have had but rather only requested travel information.
The Commission also made it clear that at any rate, he considered that it was likely that the employer had the right to collect and use that information because it was unreasonable to obtain the employee’s consent in the circumstances and because the employer believed that the collection was necessary to prevent a serious threat to the life, health or safety of an individual or the public.
So, whilst the collection, use and disclosure of employee’s information is always a vexed issued, there is some comfort for employers who wish to do so where it is reasonably necessary to identify COVID-19 risks and implement appropriate controls to prevent or manage them. Nevertheless, this is a difficult issue and we recommend that employers seek our advice if they wish to collect, use or disclosure any information in relation to their employees’ COVID-19-relevant information.
– Melissa Fitzpatrick