In light of the developing COVID-19 pandemic, and the New Zealand Government’s recent directives on 14 March 2020, we have received various queries from clients. Given the vast array of situations and variables, it would not be practical for us to cover each potential situation. Accordingly, we have chosen some of the key questions we have received and drafted practical advice for employers to consider.
Q: What are the options if an employee is advised to self-isolate?
A: If an employee is required to self-isolate, the employer can instruct the employee to take unpaid leave. However, before placing an employee on unpaid leave, the employer should first consider other alternatives, such as:
- working from home during self-isolation; or
- other leave entitlements. The employer may offer for the employee to take annual leave or sick leave during self-isolation.
If an employee is advised to self-isolate, but they still want to come into the workplace, the employer must instruct the employee to stay away from the workplace and comply with the self-isolation directive. Allowing the employee to return to the workplace when they are sick or subject to the self-isolation directive may constitute a breach of the employer’s duties under the Health and Safety at Work Act 2015.
If an employee does present to work when sick or in breach of the self-isolation directive, this may constitute serious misconduct, being a breach of a lawful instruction and a breach of health and safety. This may warrant disciplinary action up to and including summary dismissal.
Q: Can I ask employees to work from home?
A: An employer is entitled to ask an employee to work from home. Employers would have to provide the necessary equipment/systems to allow the employee to work from home, such as a computer, mobile phone, relevant software access etc.
It is important to note that an employer still has various health and safety obligations to the employee, even when they are working from home. As such, it is important for employers to ensure they have up to date policies regarding working from home.
These policies can also clarify the employee’s obligations while working at home, such as that usual working hours are expected. Our best-practice Working from Home Policy can be tailored to your business and promptly implemented.
Q: How do I treat overseas holiday applications made prior to 15 March 2020?
A: If an employee made an overseas holiday application prior to the Government’s self-isolation directives on 14 March 2020, the employer can instruct the employee to take unpaid leave for the duration of the self-isolation period, after first considering other alternatives such as working from home or other leave entitlements.
If an employer wants to request an employee not to proceed with the holiday, they may consider compensating the employee for a proportion of their holiday booking fees.
Q: How do I treat overseas holiday applications made after 14 March 2020?
A: Going forward, employers should advise employees that leave applications will be treated more strictly, to reflect the uncertainty of the COVID-19 pandemic and its economic impact.
Employers should outline that overseas holidays will only be approved in specific circumstances, and that the employer and employee will have to reach an agreement regarding the management of the self-isolation period upon the employee’s return. Employers can also advise that if an employee proceeds with an overseas holiday without the employer’s agreement, this may constitute serious misconduct and may warrant dismissal.
If the employee cannot work from home, and they do not have sufficient annual leave entitlements to cover the self-isolation period, the employer is entitled to deny the employee’s overseas holiday request on operational grounds. The employer may also deny the leave application if the business is unable to accommodate the employee’s additional two-week absence for self-isolation.
If an employee has already booked an overseas holiday, but has not yet received approval from their employer, the employer may treat this as an application made after 14 March 2020, depending on the employer’s internal holiday leave systems.
Both employers and employees should be aware of the Ministry of Health’s travel advice, which is regularly updated.
Q: What if an employee is concerned about contracting COVID-19 by attending the workplace?
A: If an employee advises their employer that they believe they are at risk of contracting COVID-19 by attending the workplace, the employer must consider the basis for the employee’s concerns.
If the employer agrees that the employee’s concerns are reasonable, then the employer must take all reasonably practicable steps to ensure the health and safety of its employees such as implementing hygiene policies or providing hand sanitiser.
The employer and employee may agree to vary the employee’s duties or location of work in order to address the employee’s concerns. If possible, the employer could allow the employee to work from home for a reasonable period of time.
Q: What if an employee is exposed to or contracts COVID-19 during the course of work?
A: If an employee is exposed to or contracts COVID-19 at their workplace, employers must allow the employee to use their paid sick leave entitlements first. If the employee exhausts their sick leave entitlements, the employer can then offer the employee annual leave, followed by unpaid leave.
Q: What if I need to downsize my company due to the economic impact of COVID-19?
A: As the economic impact of COVID-19 continues to worsen, employers may seek to reduce expenses by restructuring their business and implementing redundancies.
As with any restructure, employees must be advised of the proposed changes, and their feedback must be considered before any changes are made. However, given the swift nature of the economic fallout from COVID-19, the timeframe for this consultation may be shortened.
If you have any questions regarding the impact of COVID-19 on the workplace, you can contact us on: