By Charles Power

The Federal Government has released its COVIDSafe app, which aims to make it quicker to locate individuals who have been in close contact with someone with a confirmed case of COVID-19.

It is a voluntary app that Australians are being encouraged to download to slow the spread of the virus.

While employers may encourage their workers to download the COVIDSafe app, including for work health and safety reasons, they cannot require anyone to download or have the COVIDSafe app on their mobile device.

The Minister for Health issued a Determination on 25 April 2020 in relation to the COVIDSafe app and it is expected similar legislation will be introduced to the Federal Parliament in May 2020.

The Determination expressly provides that a person must not require another person to download or have the COVIDSafe app in operation on a mobile device. It makes clear that employers must not refuse to enter into or continue a contract or arrangement (including an employment contract), or take adverse action against a person, because they do not download the COVIDSafe app or have it in operation on a mobile. This applies to their personal mobile or one issued by the employer.

The Determination also extends beyond the employment relationship and provides that employers cannot refuse to allow persons to enter premises, participate in an activity, or receive goods or services because they do not have the COVIDSafe app in operation.

A direction from an employer to download the COVIDSafe app or have it in operation on their mobile, whether private or company-owned, will be open to legal challenge as it will not likely be considered a lawful and reasonable direction.

Eligible employees dismissed for failing to comply with such a direction can apply for an unfair dismissal remedy and may be awarded reinstatement (plus lost wages) or compensation.

So you can strongly encourage your employees to download the COVIDSafe app and keep it in operation, whether at work or otherwise. However, you cannot direct them to do this or subject them to some disadvantage because they haven’t.