Employer and employee privacy rights when navigating a health and economic crisis
Privacy is paramount to the Australian way of life and leading compensation lawyer Travis Schultz said it is just as important amid an unprecedented pandemic.
He recommends businesses protect themselves and their team members by knowing what is acceptable under the Privacy Act 1988 should a team member fall ill with the COVID-19, including the revealing of private information when it comes to contact tracing.
As COVID-19 spreads into the community, employers will have a duty to report any cases to the appropriate health authorities to help manage and prevent the virus.
The Principal at Travis Schultz Law said there are procedures businesses need to undertake to help the health authorities do their job but employers need to be mindful about just how much information is given to team members or the community.
“Only personal data that is reasonably necessary to be collected in order to manage the risk of COVID-19 should be collected or shared – which means giving out the name of the person infected to the rest of the team might not be necessary,” Mr Schultz said.
“Most information shared will be on a need to know basis so potentially only the team members who have been in contact with the person need to know the worker’s name, whereas staff in the other departments might not.
“The circumstances surrounding how the person has become infected might not need to be disclosed – for example the worker may have gone on a Tinder date so there would usually be no reason to disclose the circumstances widely.
“Always follow the advice of the Federal Government and state health authorities and if there is a suspected or confirmed case within your business, call the COVID-19 hotline (1800 020 080) and follow the advice from the health officials.
“If you haven’t done so already, I would also recommend developing an issues management plan for your business, mapping out the various scenarios that may happen including the steps you need to take should someone in your team contract the virus.
“Make sure you have the next-of-kin details up-to-date, know who you need to communicate with, when and what you need to say, while respecting the privacy of your team members at the same time.”
There will be many changes for employers over the coming months with the Australian Bureau of Statistics revealing nearly half of businesses in Australia have made changes to their workforce arrangements because of COVID-19.
Mr Schultz said because of those changes, there are a few other key issues businesses will need to be keep in mind.
“Workers might be in a position to lodge a Workcover claim if their employment was a significant contributing factor to contracting COVID-19,” Mr Schultz said.
“It is likely that both medical opinion as well as the factual circumstances will be considered before Workcover would accept a claim and pay benefits. If the exposure was likely in the workplace, then a claim is probably going to be accepted.
“Employers also owe a non-delegable duty of care to workers to avoid foreseeable risks of injury or illness in the workplace – for example in an office workplace, if the work can reasonably be done at home, then the staff should be instructed or permitted to work from home.
“If it isn’t practical, then reasonable precautions should be taken such as social distancing and good hygiene practices.
“When it comes to employment contracts, it’s worth reaching out to the Fair Work Ombudsman to ensure you’re doing the right thing or seeking the right advice about standing employees down or terminating contracts.
“Lastly there is a duty of care owed to customers and clients who visit the workplace. Employers should take reasonable steps to manage the risked posed by COVID-19 – if someone catches the virus after visiting your premises, or is discovered to be a carrier, then the business should take steps to minimise the risk of infection through temporary closure, cleaning and sanitising all surfaces before third parties are permitted on the premises.”
Travis Schultz Law is a boutique law firm servicing South East Queensland and specialises in privacy, professional negligence, public liability, motor vehicle accidents and worker’s compensation.
For more information visit www.schultzlaw.com.au or www.health.gov.au.