The Ministry of Health announced on 2 February 2020 that all travellers arriving in New Zealand out of mainland China are expected to self-isolate for a period of 14 days due to the outbreak of the coronavirus.
You may have employees returning from personal and/or business travel in China and want to know your rights.
Are you permitted to prevent the employee from returning to work? If so, are you required to pay them?
The coronavirus is a rare and unforeseeable event that is outside the control of both the employee and the employer. The law provides for these types of situations, known as “Acts of God” or “Force Majeure” events. The Ministry of Health’s direction to travellers from China to self-isolate is a situation where neither party are able to perform their respective obligations under the employment agreement due to circumstances outside their control.
Due to the Ministry of Health’s announcement, an employer would be justified in directing an employee to stay at home without pay for the duration of the self-isolation. Employers should consider this alongside the following:
- whether the employee could work from home;
- agreeing with the employee to use any annual holiday and/or sick leave entitlements;
- whether any other agreement is in place between the employee and employer that deals with these types of situations, such as a force majeure clause in the employment agreement.
Can you send the employee home if they appear sick with, or may have been exposed to, the Coronavirus?
Employers and employees have obligations under the Health and Safety at Work Act 2015 to provide a safe workplace by eliminating or minimising risks arising. The coronavirus is a risk to the health, safety and welfare of others at work. If there is a risk that an employee is suffering from the coronavirus and/or has symptoms similar to the coronavirus, an employer would be justified sending an employee home in order to eliminate and/or prevent harm to others at work.
In our view, the coronavirus is a risk to health, safety and welfare of others at work because the Ministry of Health has made an announcement asking those who have travelled to China since 2 February 2020 to self-isolate and prevent further spread. This itself invokes employers’ obligations to eliminate or minimise any risks that may arise to other employees and/or people in the workplace.
If the employer observes any employee who may be showing symptoms of the coronavirus, or the employer has a reasonable belief that the employee may have been exposed to it, an option available to the employer is to suspend the employee until they have received medical clearance from their doctor that they are fit for work and not a risk to other employees. The employer would have to meet the cost of the employee obtaining medical clearance. Employers are justified in suspending an employee (following a fair and proper process in good faith) for health and safety reasons. However, it is always our advice that suspension is on full pay.
Employers also have the option to consider use of annual leave and sick leave entitlements by agreement and/or working at home arrangements.
Working from home
Working from home is a pragmatic alternative to overcoming the self-isolation recommendations from the Ministry of Health and parties’ respective health and safety obligations. However, working from home does not discharge the employer from its health and safety obligations. Employers owe the same duty of care to employees who work from those as employees who work onsite. Employers should make inquiries to satisfy themselves that the workplace is safe and there are no foreseeable risks. This could be in the form of a health and safety checklist.
Author: Kate Fitz-John, Associate