COVID-19: Return to Alert Level 3 … not a rush to normality

The Government announced on 20 April 2020 that at 11.59pm on 27 April 2020 we will move to Alert Level 3 for two weeks before a further review and Alert Level decision on 11 May 2020.  It is important for employers to be aware of the new restrictions under Alert Level 3 so that they can prepare their business and staff for this transition. 
Q.  What does Alert Level 3 mean for my workplace?
Businesses that can “operate safely” can reopen under Alert Level 3, including:

  • forestry
  • early child care centres to provide childcare for people who are working
  • schools for Year 1 to 10
  • contactless food services, such as deliveries and drive-through
  • trades
  • manufacturing
  • food production
  • construction.

This means if any part of your business cannot work from home and there is no direct contact with customers (i.e. they do not come to the workplace, contactless deliveries or pickups), your business can reopen, subject to “operating safely”.
Businesses that can operate remotely must continue to do so under Alert Level 3. 
The Government has advised that this week, businesses will be allowed to get ready to open under Alert Level 3.  This may include re-entering the business premises to clean, receive stock and so on.  However, the rules around physical distancing and remaining in your bubbles continues to apply.
Q.  What health and safety measures do we need to implement for staff returning to work under Alert Level 3?
 “Operating safely” means:

  • complying with the Alert Level 3 requirements;
  • meeting appropriate public health requirements for the workplace, including for workers; and
  • fulfilling all other health and safety obligations.

In accordance with the Health and Safety at Work Act 2015 (“HSWA 2015”), employers have a duty to ensure, as far as reasonably practicable, the health and safety of all workers in the workplace.  Workers also have a personal duty under the HSWA 2015 to take reasonable care for their own health and safety and that their actions or omissions do not adversely affect the health and safety of others.  Employers’ health and safety obligations under the HSWA 2015 extend to employees performing work at home. 
Employees returning to the Workplace
The Government has advised that “safe” businesses will have to formalise Worksite Plans, outlining the steps that the business has taken to minimise the risk of COVID-19 transmission between staff and customers.  This Worksite Plan will need to be visible onsite. 
The Worksite Plan could include the following risk minimisation measures to ensure the workplace is healthy and safe to return to:

  • physical distancing – this could include ensuring all workstations are placed at least one metre apart, staggering rest and meal breaks, so that one metre distancing can be maintained);
  • increased hygiene measures – such as frequent cleaning, signs and reminders to staff to wash their hands, provision of hand sanitisers and disinfectant etc;
  • meeting policies – whilst at Level 3, business can only be accessed by staff with no customer facing functions.  Accordingly, internal meeting policies could be implemented to restrict the number of meeting participants (to uphold social distancing) or even prohibit face to face meetings entirely, and/or encourage the use of technology to conduct meetings;
  • temperature checking – some large companies in New Zealand have utilised this, however it does raise concerns in respect of an employee’s right to privacy;
  • preventing any employees from attending the workplace if they have been in contact with a suspected, probable and/or confirmed case of COVID-19 within the last 14 days;
  • use of PPE; and/or
  • continuing to ask employees to work from home or perform alternative duties – an employee must be consulted about this.

The Government will also be publishing sector-specific guidance over the coming days. 
Employers will also need to consider contacting employees and consulting with them about how they will return to work and on what terms, including:

  • how they will be remunerated;
  • their hours of work; and
  • whether the employee or a member of the employee’s bubble is “high risk”, and if so, what measures or alternative options can be implemented.

Employees working from home
Under Level 3, employees who can work from home, must.  To assist with meeting your health and safety obligations to employees working from home, we recommend that a Working from Home Policy is implemented and an Inspection Checklist is completed, to assess whether an employee has all of the necessary equipment and the workstation is safe and appropriate to work from home. 
A Working from Home Policy will set and manage the parties’ expectations.  It should specify the hours and days to be worked remotely, when the employee must be available, confidentiality measures to protect confidential and sensitive information, how the employee will continue to be supervised and so on.  We can assist with providing you with a Working from Home Policy and/or Inspection Checklist.
Q.  On the return to Alert Level 3, we will have “high-risk” workers who are still unable to work. What should we be paying these employees?
If after consulting with an employee around risk minimisation measures and alternative options, the employee is unable to attend work safely, then our advice is that the employee should remain at home and be allowed to take annual leave to top-up their subsidy payments. 
If the company is an “essential business” and has not received the COVID-19 Wage Subsidy, then the company may also apply under the Essential Workers Leave Support Scheme for the “high-risk” employee.  We understand that there may be further relief and guidance from the Government around these particular circumstances over the next few days. 
Q.  On the return into Alert Level 3, we may have workers who refuse to return to work citing an unsafe working environment.  What should we be saying to/paying these employees?
Some employers are finding that employees who have been paid the subsidy, plus employer top-ups have quite enjoyed their lockdown ‘holiday’ (potentially on full pay).  As such, requests to return to work (as an Essential Worker under Alert Level 4 and/or when businesses begin to reopen under Alert Level 3), may not be well received. 
In the first instance, the employer should work with the anxious employee to try and understand the root of their concerns.  However, in order to expect payment, an employee must be ready and able to work.  Unless an employee can demonstrate that they are a “high risk” individual or have someone in their bubble that is deemed “high risk” (according to Government’s public health guidance, which is available on the Ministry of Health website), then a refusal to return to work may not be reasonable. 
If an employee does not have a reasonable explanation for their non-attendance, and where the employer is receiving the wage subsidy, our conservative advice is to pass on the wage subsidy only to these employees (without top-ups).  Employees should be consulted about this first.  
Alternatively, a less conservative/more aggressive approach might be not to pass on the wage subsidy at all and/or commence disciplinary action in respect of the failure to work (i.e. an unauthorised absence) or a failure comply with the employer’s reasonable instructions. 

If you have any questions regarding the impact of COVID-19 on the workplace, you can contact us on:

Auckland: (09) 953 9757

Hamilton: (07) 981 3140

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