By Aaron Dearden and Alison Baker. The Federal Government is urging more Australians to download the voluntary app to help slow the spread of COVID and to allow social distancing restrictions to be eased.
COVIDSafe was established by the Australian Government in partnership with the medical community as a public health initiative to allow state and territory health officials to automate and improve manual contact tracing processes currently being undertaken by public health authorities. The date, time, distance and duration of the contact are generated. This will allow state and territory health officials to use the anonymised contact information captured by the app to support their contact tracing processes.
While COVIDSafe has received some strong support, particularly from the health sector, it has also generated a large amount of privacy-related discussion. The Government has sought to reassure users that information collected though the app will only be used for the purpose of contact tracing.
To this end, the Government has put in place a number of safeguards with respect to the use of COVIDSafe and the protection of information collected by the app. On 25 April , the Health Minister made a determination under the Biosecurity Act Cth , which sets out a range of restrictions to protect information collected by the app and to ensure use of the app is voluntary Biosecurity Determination.
The Biosecurity Determination is a legislative instrument under the Biosecurity Act and has the force of law. However, it is expected that legislation will be introduced in Parliament in May to support the Biosecurity Determination. Subsection 9 1 of the Biosecurity Determination provides that a person must not require that another person:. The second set of restrictions relate to adverse consequences taken because a person has not downloaded, or does not use, COVIDSafe.
The Biosecurity Determination prohibits employers and other persons from requiring another person to download, or use COVIDSafe, on a mobile telecommunications device.
This means that while an employer may encourage their employees to download or use COVIDSafe, they cannot direct employees or any other person to download or use COVIDSafe, either on a personal mobile device or on a mobile device provided by the employer for business use. In our view employers could not go so far as to recall employer-provided devices from employees and unilaterally install the app on such devices themselves or install the app on new employer-provided devices for issuance because the Biosecurity Determination ultimately gives employees the right to freely choose themselves whether to download, and use, COVIDSafe.
It applies to actions taken against employees, prospective employees and independent contractors. Adverse action includes for example, dismissing an employee from their employment, taking disciplinary action against an employee, refusing to employ a prospective employee or discriminating against an employee or prospective employee. California law also protects employees against discipline or termination for their off-duty conduct. This law is based on the idea that when employees are not at work, they should have freedom from the employer.
Privacy is fundamentally a right to be left alone. Ten states have constitutional rights of privacy. Other states have specific privacy laws that apply to off-duty conduct. Also, federal government employees are generally protected against monitoring of off-duty conduct under privacy rights. If you are the employer, be mindful of employee privacy, especially when the information you are collecting relates to off-duty conduct. When buying software, understand what device is used.
Put it in writing and get employees to acknowledge that they received the notice. And while you are at it, think carefully about how this is going to go over and whether this is the environment you want to foster. A surveillance culture sucks. Nobody wants to work like that. If you are an employee, understand what the apps on your phone do, what data gets transmitted, who gets it, and what they do with it.
Let HR know about your concerns and ask them to look into alternatives. If the answer is pound sand or some politer version , then find out if you can remove the app from your phone when you are not at work. It may be as easy as deleting and reinstalling Facebook on your phone which I seem to do a lot as I figure out how much time I actually want to spend staring at a phone screen. And maybe an attorney. Privacy matters. Employee Privacy 3 —Social Media. We offer a growing number of high quality reports in the HRExaminer.
Get your free HRExaminer report today. And the employer will most likely lose under California law.
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