Managing workloads and isolation requirements - FAQ from our clients
Over the course of the past week, we have been receiving a number of phone calls and emails from clients concerned about the Coronavirus pandemic and the impact it will likely have on their workplaces, especially as the Government has announced the tighter border controls requiring any individuals returning to NZ from today to self-isolate for 14 days. Further restrictions on mass gatherings are expected soon, and while the situation is uncertain and changing quickly, my advice to clients is that they must abide by employment law.
From an employment law perspective, remember your obligations as follows:
Being a PCBU under the Health and Safety at Work Act 2015; and
Being a good employer under the Employment Relations Act 2000.
I think that employers need to seriously consider their ability to provide additional protections against the disease. This will be industry specific, and it may require a little bit of creativity. Some examples include;
increase hygiene standards,
setting a no handshake rule and teaching staff about their hygiene practices,
stopping all business travel, whether that be national or international,
implementing social distancing,
allowing employee's work from home?
Please see below for my responses to some of the most frequently asked questions, answered on the basis of employer obligations in the Acts mentioned above ;
If an employee is refusing to work or be public facing due to fear of catching Coronavirus from strangers, what can I do?
If they are not experiencing any symptoms, they are required to work. However, if the employee is "high-risk" (elderly, pregnant, has respiratory illness) I believe the employer would be obligated to seriously consult with the employee about time off work. After all, the employer is required to take reasonably practicable measures to keep all employees safe in the workplace. This leave would be unpaid though, unless there was agreement to pay sick leave, annual leave, or special leave. If the employee is experiencing symptoms, then they should self-isolate and the employer should encourage this.
Can employee's in self-isolation request sick leave?
In many of the isolation cases your employee is not at work because he or she has been exposed to the risk of infection, but neither is actually infected or sick. Technically speaking, an employee who is sick, or who needs to care for a spouse or dependant who is sick, is entitled to paid sick leave under the Holidays Act. In most cases employee's aren't entitled to paid sick leave if they aren't sick or injured. However, given the current circumstances, it would be reasonable to recognise Government required isolation as sick leave if that is an option. As with anything, ensure that any agreement made is recorded in writing, even if simply by email or text.
If I have a staff member having to self isolate and they have no sick leave or annual leave owing, am I obliged to help and pay them ?
No. This may change if the government implement new policies, but presently there is no legal obligation to pay an employee who is required to self-isolate. Though, I would recommend considering the capacity of the business to offer sick leave or annual leave in advance, though.
Can I force my employee's to take annual leave?
Yes and No. The Holidays Act requires the you and your employee's to come to an agreement on when annual leave should be taken. If both parties can't agree, you could direct a requirement for your employees to take annual holidays on 14 days' notice, although that's unlikely to be a suitable option for dealing with coronavirus. If an employee is requesting to take annual leave at short notice, it is your decision whether or not to approve this, but my opinion is that if they have the leave owning, and their absence will not cause too much disruption to your operations, it may be unreasonable to not approve this given current circumstances.
Can I tell my employees to stay home and delay the payroll because the business can't afford it?
No. You are required to pay employee's in full each pay day, unless otherwise agreed with each individual employee. Deferring payment without employee consent is a breach of the Wages Protection Act. Any employees who are ready, willing and able to work are entitled to be paid, even if the employer has no work for them. If your business situation continues you may ultimately need to consider redundancies.
Can I temperature screen my employees?
It depends. While it may seem a bit of an extreme, if this is something that you are wanting to consider, it will be needed done in accordance with your employment agreement and the Privacy Act, and I would recommend getting legal advice before pursuing this.
Do I have to allow employees to work from home?
No. So, in a normal circumstance, a change of working location can only be done by mutual agreement. But in these circumstances, I would say advise that you seriously consider any application for someone to work from home. There's a few factors that anyou would need to consider:
Is it reasonably practicable for the employee to work from home?
What are the costs associated?
What is the quality of internet?
Are there cloud based services?
Most importantly, you would need to consider the employee themselves and take into account and health and safety implications. So if an employee is immune-compromised, if they're pregnant, or if they're elderly, there may be a stronger argument for allowing an employee to work from home. But I think it's really important to know that if an employee is concerned, there's nothing stopping them from self-isolating themselves, or requesting a period of leave to stay at home.
Can I cancel an employee's approved leave because I cannot afford for them to go into self isolation when coming back into the country?
No. If the annual leave was approved prior to 15 March 2020, you cannot retract that. However, there's nothing stopping you and your employee from reaching an agreement that may entice the employee to withdraw their leave, so you may need to get a bit creative. With regard to any new leave requests that may come you are required to approve these. You may want to set some guidelines with employees about what you may or may not consider granting for the foreseeable future.
If my business is forced into a close-down period, am I still needing to pay my staff?
In short, Yes. Employee's are entitled to be paid for their guaranteed hours (as provided in their employment agreement). You could impose a mandatory close down period to close your business short term, but this will depend on the provisions in your employment agreements. There are some clauses that allow for business to close short term in cases like this and I would recommend getting legal advice before going here, but if there is no clause, and you are required to close short term, you will be required to continue to keep paying your employees their minimum hours. If this is something that is not possible, depending on your individual circumstances, your company may need to consider a restructure to reduce your staffing levels. And on that note, if the business needs to close permanently, you will need to run a fair and proper restructure process.
Can I reduce my employee's hours for the duration of the pandemic?
No. If you wanted to change an employee's hours that can only be done by agreement, or through a fair and thorough restructure process. However, there is nothing against you and an employee coming to an agreement about part time hours.
Can I dismiss new employees under the trial period due to the impact of Coronavirus on my business?
Yes. You are entitled to dismiss workers during the 90-day trial period for any reason, including a downturn in business
Do you know if there is any help or support for independent contractors or self-employed people?
None that I'm aware of, but I think the government intends on addressing this soon. Because contractors are not employees, they don't have the same benefits like paid sick leave or job security, and are especially vulnerable. This current situation highlights the risks that contractors and self-employed workers take. Contractors are generally paid additional rates because of these additional risks they take on and while there is a strong case for these individuals without any other streams of income to be compensated, that would be at the Government's discretion as there is no such entitlement by law at present.
If your business and ability to keep your employees' employed is impacted by Coronavirus, you (and as such, your employee's) may be entitled to targeted tax assistance and/or a wage subsidy from the Government. The "business continuity package" was agreed to by the New Zealand Cabinet on Monday 9 March 2020 and further information is expected to be released to the public as the week progresses.
Disclaimer
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.