By Charles Power

On 18 March 2020, the Australian Information Commissioner advised employers regarding their rights to request information from employees during the COVID-19 pandemic.

The advice confirmed employers could collect information from employees or visitors in relation to COVID-19, provided they only collected as little information as is reasonably necessary for preventing or managing COVID-19. This includes information that the Department of Health says is 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; and
• whether the individual has recently travelled overseas and to which countries.

While health information attracts greater protection under the Australian Privacy Principles (APPs) in Schedule 1 of the Privacy Act 1988 (Cth), the information handling requirements imposed by some APPs do not apply if collection, use and disclosure lessens or prevents a serious threat to life, health or safety of any individual, or to public health or safety.

If this situation applies, you can collect, use, or disclose personal information if it is unreasonable or impractical to obtain the individual’s consent to the collection, use, or disclosure.

In Knight v One Key Resources (Mining) Pty Ltd (2020) a recruitment consultant was dismissed for failing to follow a reasonable and 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 employee declined to do so on privacy grounds. The employer issued him with a warning letter and email, then dismissed him for refusing to comply with the direction.

The employee submitted the direction for information was in breach of the APPs. The purpose of the request for the information was to assess the employee’s risk of contracting COVID-19.  Despite his objection, the employee did not make any request of the employer to explain how the information would be used or how it would be used to assess his health risk.  The employer claimed the information was necessary for it to fulfill its obligations under work health and safety legislation to protect itself and its employees from risk.

The Fair Work Commission was satisfied that the employer had a valid reason for dismissal.  The request for information was not a request for sensitive health information. It did not ask for a description of any symptoms that might indicate whether the employee had contracted COVID-19. It simply requested travel information. Therefore the direction to complete the survey was a lawful and reasonable direction, and dismissal for not complying with it, after being warned, was not unfair.

The Commissioner observed that if he was wrong, then given the circumstances of the COVID-19 epidemic at the relevant time, it is likely the collection and use were authorised because it was unreasonable to obtain the employee’s consent, and the employer reasonably believed that collection was necessary to lessen or prevent a serious threat to life, health or safety of an individual, or to public health or safety.