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LexisNexis

By Yoness Blackmore, Senior Legal Writer, LexisNexis Practical Guidance Employment

If you have this data, how can you use it?

Vaccination is a word on almost everyone’s lips these days. It’s a tough issue for both businesses and workers, many of whom may have already made decisions either way; or are in the process of doing so. 

However, the key issues are not just about vaccination decisions, there is also a big question around whether businesses can keep records about workers’ vaccination status.

Boards, in-house counsel and human resources practitioners may be exhausted by the myriad of seemingly competing and contradictory legal and policy considerations relating to mandating or supporting vaccination in the workplace. 

But what about the information relating to an individual’s vaccination status? Can it be collected and used by businesses? What happens if a business breaches Australian Privacy Principles (APPs) when asking for proof of an employee’s vaccination status? 

This is yet another Pandora’s box of potential missteps for businesses.

Key points to note

  • In situations where a public health order requires vaccination, this decision is not difficult and vaccination information will be kept in accordance with the public health order. 
  • This may also be easier when an employment or services contract lawfully requires the provision of vaccination information as a condition of employment or engagement. It is likely that many businesses going forward will include such clauses for new staff.
  • However, where a business simply wants to keep vaccination information as part of its COVID-safe plan, it will be all about obtaining valid consent. Staff may be more likely to agree to provide information relating to their vaccine status if they are provided with a reward for doing so and where the extent of information about vaccination (or medical contraindication) is kept to a minimum and stored for no longer than necessary.
  • The other alternative is to ask staff members to show the business the online immunisation history statement, COVID-19 digital certificate from the Australian Immunisation register or other satisfactory evidence with no record being kept of that person’s status. As the information is not collected, the APPs will not apply. However, this may be of little practical utility if a business wishes to use the results to better manage risks to staff and clients, including in the COVID-safe plan.

Download the LexisNexis report HERE to learn the answers to these and many more questions, including:

  • Collecting vaccination information – what are the rules?
  • What should employers do when seeking consent from staff to share their vaccination information?
  • What happens if a business breaches Australian Privacy Principles when asking for proof of vaccination?
  • What about the employee records exemption?
  • Is the “carrot and stick” approach helpful when asking about an employee’s vaccination status?

About Yoness Blackmore

Yoness Blackmore has more than 10 years’ employment and workplace relations law experience at leading international and national firms in Australia and the United Kingdom, including Johnson Winter & Slattery, Ashurst (formerly Blake Dawson), and Allen & Overy.
She has extensive experience as a trusted partner in corporate reorganisations, strategic policy work, the drafting and negotiation of all work cycle documentation (employer and contractor), HR and board-level advisory work, supply chain, workplace training, investigations, advising on and implementing workplace change, enterprise bargaining, managing private sector corporate whistleblowers matters and litigation.

Yoness is a regular commentator for LexisNexis on workplace law issues.

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