July 17, 2020

Australian Information Commissioner in March 2020 advised yes, an employer can however, employers should collect as little information as is reasonably necessary for preventing or managing COVID-19. That includes information that the Department of Health says in needed to identify risk and implement appropriate controls to prevent or manage COVID-19, for example:

  • whether the individual or a close contact has been exposed to a known case of
    COVID-19; or
  • whether the individual has recently travelled overseas and to which countries.

Employers have a positive obligation under Occupational Health and Safety (OHS) laws to maintain a safe workplace though it is important to note OHS laws do not give the employer unfettered rights to demand all sorts of sensitive information from an employee.

A recent unfair dismissal case in the Fair Work Commission discussed some of the limits around what employers can request and the rights of employees in a COVID-19 scenario.

On 29 June 2020 the Fair Work Commission held a dismissal of an employee who repeatedly refused to complete a survey requested by his employer asking about past and future travel arrangements was not an unfair dismissal. The Commissioner also said consent by the employee was not reasonable in the circumstances (in relation to a COVID-19 outbreak) meaning the employer can demand the travel information.

The Fair Work Commission held the employer had a valid reason for the dismissal, that the direction to complete the survey was a reasonable and lawful direction, and that the survey from the employer requesting travel information was not a request for sensitive health information.

The Fair Work Commission case highlights the need for employers and employees to be mindful and respectful of their respective rights.

If in doubt, we recommend employers obtain legal advice before taking action against an employee, and employees who are thinking about refusing to comply with their employer’s demands obtain legal before refusing to comply with demands the employee thinks is unreasonable or unlawful.

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