COVID-19 and Employers’ Obligations

Closing workplace

As COVID-19 continues, 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. First of all 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. Meanwhile 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.

Allow employees work from home

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, etc.

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.

Pay during self-isolation

In accordance with the Holidays Act 2003, employees who are sick or are caring for a spouse or dependent who is sick, are entitled to sick leave. 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.

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 Health line, ill with COVID-19, or caring for someone with COVID-19.

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.