COVID-19 and the workplace

Employment Law
Mar 17 2020
On 28 February 2020, New Zealand confirmed its first case of Coronavirus (COVID-19), and the number of confirmed cases continues to increase. At the time of writing New Zealand currently has 11 confirmed cases. After a 13-fold increase in COVID-19 in the past two weeks, the World Health Organisation have labelled the outbreak a “pandemic”.

On 14 March 2020 the New Zealand Government announced further travel restrictions, which included a requirement that all travellers entering New Zealand must self-isolate for a period of 14 days immediately following their arrival in New Zealand. This includes New Zealand residents and citizens and came into effect at 1am Monday 16 March 2020.

COVID-19 and the Workplace

These restrictions have heightened the challenges already facing New Zealand employers at this time. This is an unprecedented situation. Minimising the spread of COVID-19 within workplaces is important to ensure employees are kept safe and well at work, while also ensuring other obligations are met.

Employer Considerations

Employers should consider the following:

  • The duty to provide a safe workplace for employees and what this requires.
  • The seriousness of the virus and how to manage the health risk to workers and other people in the workplace.
  • The obligation to treat employees in good faith, operating in an open and communicative way.
  • Dealing with situations where employees are required to self-isolate or where isolation/work from home needs to be directed.
  • Working from home arrangements, and what to do when not possible.
  • Work strategies and whether reducing employees’ hours or redundancies are necessary and how to manage this.

Providing clear communications to employees around the employer’s planned response to the virus and the implications for employees is key, as well as setting out the employer’s expectations of its employees (eg. using good hygiene practices). Many employers already have plans in place for ‘worst case’ scenarios, including having an infectious case.

Self Isolation/Absence from Work

For any staff who are required to self-isolate, or if an employee is exhibiting symptoms, employers should not require these employees to attend work as this may be in breach of the obligations to keep employees safe which are contained in the Health and Safety at Work Act 2015. That obligation extends to all in the workplace, not just employees.

Employees who are self-isolating but not unwell, should be encouraged to work from home where possible. If the employee can work from home, they should be paid normally. If the employee is not unwell but unable to work from home, then employers should consider special paid leave. Other arrangements could also be considered including working from other premises or working from the homes of other staff members.

Where an employee cannot work but is not unwell, deducting leave from the employee’s annual or time in lieu or other balance may be possible but only following consultation with the employee and any relevant conditions in their employment agreement/policies. There are mechanisms to require employees to take annual leave in certain circumstances which may be able to be utilised. There may also be mechanics to allow employees to be suspended with or without pay, depending on the employee’s employment terms.

If employees have booked non-essential travel (except to Pacific Islands) it will be important to discuss as soon as possible to confirm if they intend travelling, and if so, how they intend to manage the self-isolation period. There may also be isolation requirements in the destination country to consider. It will be important to stay up to date on developments of measures taken overseas.

Employers may also face issues when employees either refuse to self-isolate or attend work when ill. Circumstances may justify a direction to the employee not to attend the workplace. Failure to follow a reasonable direction could lead to disciplinary action up to and including dismissal. We recommend advice be taken before taking disciplinary steps.

Some employees may request to self-isolate because they consider themselves at a higher risk of harm from the virus. Communication is key. Having up to date contact details for staff, and details of any relevant pre-existing health conditions is important.

Impacts

If the impacts of COVID-19 mean that your business needs to consider temporary or permanent staffing changes which could result in hours being reduced or roles being made redundant. We recommend seeking advice before starting any such process/discussion.

Higher Risk Industries

There are certain workplaces/industries where the risk and considerations are greater, including:

Medical and dental practices and other health related fields with greater risk of infection;
Childcare; and
Tourism operators and businesses dependent on tourists.
Tailored advice is best to meet the employer’s requirements.

Overseas Examples

Overseas employer measures to deal with the outbreak include:

  • Partial/total closure of businesses;
  • Enforced work from home arrangements;
  • Reducing or eliminating large meetings and seminars, using Skype/phone etc. instead;
  • Operating in teams, with limited staff in the employer’s offices;
  • Cancelling all non-essential travel; and
  • Reducing/eliminating physical client contact;
  • Enforcing contact rules, e.g. no handshakes and physical contact.
What Next?

These are concerning and reasonably unprecedented times. Communication is key. Support should be offered where possible including employee assistance/counselling, where appropriate, to support the mental wellbeing of staff.

We can expect the virus to continue to cause ongoing disruption both internationally and domestically.
Cabinet has approved the development of a Business Continuity Package to help support the economy through the disruption caused by COVID-19. The package includes a targeted wage subsidiary scheme, training and re-deployment options for affected employees and working with banks on the potential for future working capital support for companies that face temporary credit constraints.

We advise an open and communicative approach, which is guided by your unique business, its resources and flexibility. Planning is key. We are happy to provide advice tailored to the individual circumstances of your business and employees.

For further comment please contact:
Christie Goodspeed
Partner
Holland Beckett Law
Mobile: 021 084 14220
Email: christie.goodspeed@hobec.co.nz

Sophie Law
Senior Solicitor
Holland Beckett Law
Mobile: 027 305 7190
Email: sophie.law@hobec.co.nz

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