Employer’s obligations and COVID-19 (Coronavirus)

On 14 March 2020, the New Zealand Government announced that there will be stricter border measures in place to protect New Zealand from the spread of COVID-19 (Coronavirus). Further restrictions on mass gatherings are expected soon.

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.

These obligations form the basis of our responses below.

Frequently asked questions

If an employee does not attend work because they are in self isolation as a result of the above restrictions announced by the Government, are we required to pay them?

If an employee is required to self isolate as a result of a government mandate due to a risk of COVID-19 (Coronavirus), then the employee is not ‘ready, willing and able to work’. Therefore, there is no legal requirement to pay an employee unless their employment agreement or company policy states otherwise.

The steps an employer needs to work through are:

• Can the employee undertake alternative work, such as working from home?
• If not, is the business in a position to pay paid special leave on a discretionary basis?
• If the answer is No to the first two questions, the employer and the employee need to agree on how this self isolation period will be treated from a pay perspective. This may include a combination of:
  • Paid special leave (discretionary);
  • Unpaid leave;
  • Alternative leave/Annual leave; and
  • Sick leave (noting that the employee is not technically ‘sick’).

We note that you cannot force an employee to use their alternative/annual leave or sick leave during this period. We suggest consultation with the employee and their Union or representative. The above also applies if a person contracts Coronavirus, and has utlised their accrued sick leave entitlements.

However, if you are requiring your employees to self isolate as a precautionary measure (e.g. as a result of their partner or dependent at home being self-isolated), then you may need to place the affected employees on paid special leave (unless they can work from home, in which case they should receive their usual wages or salary).

Can we give employees 14 days’ notice under the Holidays Act 2003 to take annual leave?

In short, yes, but this relates to entitled leave only and you must consult.

We have a force majeure clause in our agreements, can we use it now?

Yes, however, it depends on the wording. We suggest seeking advice before looking to invoke one of these clauses. 

Can I require my employee to provide medical clearance before returning to work?

Yes, under the Holidays Act 2003, in relation to health and safety or hygiene reasons, which would prevent the employee from working and there is clause in the employment agreement allowing this.

Can I tell other employees or third parties that an employee has been quarantined or infected as a result of the coronavirus?

There are limits on the ‘use’ and ‘disclosure’ of an employee’s personal information, including whether they have been quarantined or infected by the COVID-19 (Coronavirus) under the Privacy Act 1993.

However, an employer is legally allowed to use and disclose an individual’s personal information to prevent or lessen a serious threat to:

• Public health or safety; or
• The life or health of the individual concerned or another individual.

What plans should I have in place to protect my business, employees and workers from the COVID-19 (Coronavirus)?

The WHO recommends that workplaces implement the following steps to get your workplace ready for COVID-19 (Coronavirus):

• Make sure your workplaces are clean and hygienic, including surfaces and objects.
• Promote regular and thorough hand-washing by employees, contractors and customers, including placing hand sanitiser dispensers in easily locatable places around the workplace.
• Promote good respiratory hygiene in the workplace, including posters promoting respiratory hygiene and readily available paper tissues in the workplace.
• Advise employees and contractors to consult national travel advice before going on business trips.
• Brief your employees, contractors and customers that if the coronavirus starts spreading in your community anyone with even a mild cough or low-grade fever (37.3 C or more) needs to stay at home. They should also stay home (or work from home) if they have had to take simple medications, such as paracetamol/acetaminophen, ibuprofen or aspirin, which may mask symptoms of infection.

For further information below is a useful link from the WHO on getting your workplace ready for the COVID-19 (Coronavirus):

www.who.int/docs/default-source/coronaviruse/getting-workplace-ready-for-covid-19.pdf?sfvrsn=359a81e7_6

Further information

We recommend that you keep a watchful eye on the following government and internationally mandated websites:

• The World Health Organisation: who.int
• The New Zealand Ministry of Health: www.health.govt.nz
• Your local District Health Board website

If your employees’ employment is effected by the COVID-19 (Coronavirus), they may be entitled to a targeted wage subsidy and your business may be entitled to tax assistance 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 in the week starting Monday 16 March 2020.

Workplace Law team

Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green,  Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh), Sarah Kirkwood, Janeske Schutte, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew Shaw,  Fiona McMillan