HRD investigates privacy obligations of employers during the COVID-19 pandemic
Earlier this year, the Fair Work Commission (FWC) ruled that it’s lawful for an employer to request certain information from employees to determine any workplace risk around COVID-19.
The decision provides guidance for employers in terms of the balance between employee privacy and employer safety obligations during COVID-19. Let's take a look at the facts of the case and its lessons for employers.
Background
Recruitment firm One Key Resources requested employees to complete a travel survey. The questions included whether they had travelled to any countries which were considered moderate-risk or high-risk for COVID-19 and what their future travel plans were.
One employee refused to complete survey on the grounds that the request was in breach of the Privacy Act and was dismissed from the company after being given a written warning.
Ruling
After taking the case to the FWC, it was found that the direction to an employee to complete a travel survey was a lawful and reasonable direction in circumstances where the employer was seeking to collect information to manage the COVID-19 risk.
In particular, the justification for the decision was that the information was necessary to protect the company’s employees and fulfil its health and safety obligations.
What information can employers request?
The case is an interesting example of where employers can draw the line in terms of requesting personal information, according to Michael Michalandos, Asia Pacific head of employment law at Baker McKenzie.
“It is generally recognised that it is a lawful and reasonable direction if you collect as little information as is reasonably necessary for preventing or managing COVID-19,” Michalandos told HRD.
“That would typically include what the Department of Health says is required by the employer to identify the risk and implement control.”
Michalandos offered the example of information such as whether the employee has been in close contact or exposed to a known case of COVID-19 or whether they recently travelled overseas (and to which country).
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“The employer must reasonably believe that the collection, use or disclosure is necessary to lessen or prevent serious threat to the life, health or safety of an individual or to the general public. That’s the key exemption which applies,” he said.
“Firstly, in these situations the employer should always attempt to obtain consent and it is important that they disclose the use to which that information will be put and how it will be managed. They must also take steps to ensure that that information is kept confidential.”
Michalandos also cited an interesting case last year which occurred before the COVID-19 pandemic. It involved the employer Superior Wood requiring employees to consent to fingerprint scanning to record attendance.
After one employee refused and continued to manually sign, Superior Wood attempted to reason with him and address his concerns. However, after still refusing to scan the employee was ultimately terminated.
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At first instance, the FWC found that Superior Wood had a valid reason to terminate the worker’s employment, being that he refused to follow the direction to use the scanners which was deemed a reasonable request.
Upon appeal, however, the Full Bench of the FWC found that it was not a lawful direction as it infringed the employee’s rights under the Privacy Act.
In that particular circumstance, the Full Bench found that the employee records exemption only applied to records actually held by the employer. Consequently, the Privacy Act applied to practices engaged in by the employer up to the point of collecting personal information.
Key lessons for employers:
Looking for more information?
Michael Michalandos will be speaking about Privacy obligations of employers during COVID at the upcoming Employment Law Masterclass. To register, click here.
