Many businesses around the country are eagerly anticipating being able to trade again. Others are preparing to reopen while maintaining social distancing protocols. Meanwhile, employers continue to plan for a range of contingencies over the short-to-medium term. For some employers, this has included encouraging employees and customers to download the Federal Government’s COVIDSafe App.

Many employers – conscious of their work health and safety obligations - have been asking us a similar question. They want to know if they can require their employees to download the COVIDSafe App before returning to work.

Unfortunately for them the answer is no.

The Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Emergency Requirements – Public Health Contact information) Determination 2020 (Determination) explicitly says that a person must not require another person to download the COVIDSafe App.

The Determination also prevents employers from doing the following because their employee has not downloaded the COVIDSafe App:

refuse to continue with a contract of employment;
take adverse action (such as terminating the employment contract or otherwise subjecting the employee to detriment); and
refusing to allow the employee to enter the premises.

This certainly doesn’t prevent an employer requesting that an employee download the App and communicating the reasons why an employee should do so. As part of these communications senior management should be prepared to say that they have already downloaded the App. Employers could also ask their employees whether they have downloaded the App as part of their contingency planning. However, given the prohibition on taking adverse action against those who do not download, employers would need to be careful about how they handled non-responders and those who say no.

For further information please contact:

Jasmine O'Brien
Principal
T +61 3 9611 0149 l M +61 401 926 108
E jobrien@sladen.com.au