Tuesday, 17th March, 2020
This article provides guidance.
This content is provided by: Kiely Thompson Caisley- Employment Law Specialists
With New Zealand confirming its first case of the novel coronavirus (officially named ‘COVID-19’) on 28 February, many employers will want to know what their legal obligations are when managing issues relating to the virus in the workplace.
These obligations can create many practical challenges, such as whether employers can require employees to stay away from work and whether employees are entitled (or ought) to be paid in such circumstances.
It must be noted that the situation is constantly developing, and employers should regularly monitor the Ministry of Health’s advice to ensure they have the most current information.
SICK LEAVE ENTITLEMENTS
An employee who is sick, or whose spouse or dependent is sick, is entitled to take paid sick leave.
The minimum statutory entitlement of sick leave is five days per annum, following the completion of six months’ continuous service. An employee can accumulate up to 20 days’ sick leave. However, employers can provide employees with more sick leave than the statutory entitlement. Some employees may have a contractual entitlement to more.
If an employee’s sick leave entitlements are exhausted, the employee may ask to use any annual leave entitlement or to use annual leave in advance.
Given the novel coronavirus has now reached New Zealand, increasing numbers of employees may be advised to self-isolate having been in contact with a confirmed case or having travelled to a country or area of concern.
Businesses will need to consider how they can best accommodate employees in such a situation.
Where an employee is self-isolating but not sick or injured, they will not be entitled to take sick leave.
However, employers may wish to consider the potential long-term impact of any approach that could discourage employees to self-isolate, where that is recommended by authorities.
Our recommendation is that employers work with employees in such cases to make arrangements for employees to continue working remotely wherever possible. Where remote working is not possible, employers could agree to allow employees to use their sick leave or annual entitlements.
However, where an employee is subject to a government-imposed quarantine and is unable to report for work, the position for employers may be different.
In such circumstances, the employee is not willing and able to work, which would generally mean they are not entitled to payment. However, employers should consider alternative working arrangements and should consult with the employee about whether they wish to use their sick leave or annual leave entitlements.
EMPLOYERS’ HEALTH AND SAFETY OBLIGATIONS
Under the Health and Safety at Work Act, all employers are obliged to ensure the health and safety of workers as far as reasonably practicable and to actively manage health and safety risks. Employers have a duty under the Act to eliminate health and safety risks, or where it is not reasonably practicable to eliminate those risks, to minimise them as far as is reasonably practicable.
The employer’s duty would include managing health and safety risks posed by the novel coronavirus. A starting point could be for employers to identify what the health and safety risks are and ensure existing health and safety policies are up to date. Employers would also be encouraged to develop risk management and communication plans which address who employees should contact if they contract the virus, and how employers will keep employees informed.
REQUIRING EMPLOYEES TO STAY AWAY FROM WORK
As employers have a duty to eliminate or minimise workplace health and safety risks, they may be concerned about allowing an employee who is suspected of having the virus into the workplace. Employers should consult with the employee before making such a decision.
Some employment agreements may contain clauses that deal with whether an employee will be paid in such circumstances. However, the general position is that if the employer decides to restrict workplace access to an employee who is willing and able to work, the employee will be entitled to be paid. Whether this would be still be the case with respect to the novel coronavirus is uncertain.
Employers should in the first instance consider alternative working arrangements, such as the employee working from home. If employees perform their normal work from home, they are entitled to be paid.
Employers’ obligations, particularly with respect to the health and safety and whether or not employees are entitled to be paid for coronavirus-related absences, are not straightforward and will always depend on the particular circumstances. We recommend employers seek legal advice in relation to their obligations in specific circumstances.