By Claire Mansell - 16 Mar 2020
As COVID-19 continues to sweep across the globe, many
employers are contemplating the potential effects on their
businesses, not just from a down-turn in trade but the very real
possibility that they may end up with multiple staff absences over
an extended length of time. Below we answer some of the common
questions our employer clients are asking.
Am I required to allow my employees to work from
home?
This will depend on the nature of the employee's role. Under
Part 6AA of the Employment Relations Act 2000, employees have a
statutory right to make a request for a variation of their working
arrangements, including the ability to work from home. Employers
have a month to consider the request. The Act sets out the reasons
why a request may be denied, including:
- inability to reorganise work among existing staff
- inability to recruit additional staff
- detrimental impact on quality
- detrimental impact on performance
- insufficiency of work during the periods the employee proposes
to work
- planned structural changes
- burden of additional costs
- detrimental effect on ability to meet customer demand.
If the employer cannot justify denying a request on one of the
above grounds, the request must be granted. Employees should be
paid normally while they are working from home.
If you are going to allow working from home, it would be prudent
to introduce a policy which sets out who can work from home and
under what circumstances. This ensures that employees are treated
equally. Treating some employees more favourably than others can
give rise to a disadvantage claim (i.e. if one team is allowed to
work from home, but not others in the same role). As with any
policy, this should be introduced after consultation with
employees.
Do I need to shut down my
workplace?
As at the time of publishing this blog, there is no guidance
from the Ministry of Health that workplaces need to shut down.
However, employers need to bear in mind that they have obligations
to maintain a safe workplace under Health and Safety at Work Act
2015. If the advice from the Ministry of Health changes in the
coming days/weeks, employers may be required to close completely or
operate under restrictions.
In the meantime, employers are required to take all reasonable
steps to minimise the risk of COVID-19 spreading. This includes
preventing employees returning to the workplace if they are ill or
are suspected to be ill with COVID-19, or if they have been advised
to self isolate in accordance with Ministry of Health guidelines.
In addition, employers should not require any employees to
undertake any non -urgent international travel.
Do I need to pay my employees while they are in self
isolation?
Employees who are sick or are caring for a spouse or dependant
who is sick, are entitled to sick leave in accordance with the
Holidays Act 2003. The Act provides for a minimum statutory
entitlement of 5 days per year which can accumulate up to 20 days.
If an employee does not have sufficient sick leave
entitlements to cover their absence they may wish to take further
leave, such as annual leave. An employer does not have to comply
with a request to use annual leave in lieu of sick leave, but must
not apply annual leave without the employee's consent.
If an employee is absent from work for reasons related to
COVID-19 (such as enforced self-isolation on return from overseas)
but they are not actually ill, then they are not entitled to sick
leave under the Holidays Act. Most employment agreements mirror the
Act in this respect however it is ultimately up to the discretion
of the employer as to whether it agrees to additional leave. If
this is the case (and the employment agreement does not provide for
it), any such agreement should be recorded in writing.
Employees
who are in self isolation may be entitled to the COVID-19 Leave
Payment recently announced by the Government. This payment is
available to those whose are in self-isolation in accordance with
Ministry of Health guidelines (and who have registered with
Healthline), ill with COVID-19, or caring for someone with
COVID-19. Employees are entitled to $585.80 pwer week if they work
20 hours or more per week or $350.00 per week if they work less
than 20 hours per week. These payments are available for the 14 day
period (if in self-isolation) or for the period that they or their
dependent is ill with COVID-19. The payment is made directly to the
employer who must pass it on to the employee. This payment is not
available to those who travel overseas after 16 March 2020.
Finally, some employers are contemplating the possibility of
having to shut the doors for a period as part of a health and
safety management plan or, due to government mandated action. In
this scenario, where employees are prevented from working by
reasons beyond their control (but are otherwise ready and willing
to work), most employees would be entitled to be paid as usual
unless there is agreement otherwise.
However, given that some workplaces may face closure for an
extended period of time, employers may need to consider
redundancies or ending the employment relationship in accordance
with any force majeure clause (if there is any in the employment
agreement). In either case, a consultation process must be
followed. We recommend that we review your employment terms
before you commit to this action.
What happens if an employee chooses to travel
overseas and is subsequently placed in self
isolation?
If an employee has already booked annual leave overseas and is
subsequently placed into self-isolation, the employer and employee
should discuss (in good faith) how the self-isolation period should
be managed. Options may include working from home, taking further
annual leave or unpaid leave. If no agreement can be reached,
the employee should be directed to stay away from the workplace and
advised that any such leave will be unpaid unless agreed
otherwise.
As of Sunday morning, the government has new border measures
requiring most passengers returning from overseas to self-isolate
for a period of 14 days. Employees who have planned overseas travel
must now factor the self-isolation period into their leave
requirements. A clear policy or open discussions with employees
about how compulsory isolation will be managed will allow employees
to make informed choices about whether or not to travel at this
time.
Conclusion
The coming weeks will be tricky times for employers and
employees alike as we plan and respond to the COVID-19 outbreak. If
you require any assistance, or have any questions arising from this
blog, please contact our employment team.