Managing COVID-19 as an employer

Following the outbreak of COVID-19, employers need to ensure they are taking appropriate steps to manage the potential risks for their workers and others who may visit the workplace. Some of the actions may be required at law under health and safety legislation. Other actions may involve a combination of legal obligations and discretionary matters, such as whether to pay staff for absences due to COVID-19 where leave entitlements have been exhausted and if working from home is not an option.

It is important to understand the obligations on businesses and employers to avoid being in breach of their statutory duties (for example under the Holidays Act 2003 and the Health and Safety at Work Act 2015). Equally, it is essential that businesses and employers understand where they can exercise discretion and communicate their policies to workers to manage expectations. Communicating early with staff on travel and leave entitlements plus providing information about good hygiene and support can facilitate good decision making and outcomes down the track.

As this is not a foreseeable event, employers are unlikely to have budgeted for the impact of COVID-19. This means that decisions about paying employees, especially if they are not able to work for lengthy periods of time, need to be considered carefully. Currently, the cost of remunerating staff falls solely with employers and others engaging workers. It is possible that the New Zealand Government may, in the future, consider some type of subsidy or other assistance to support employers and businesses.

Current Ministry of Health guidelines regarding COVID-19 requires those who have been mainland China, Iran, Italy, or the Republic of Korea, and people who have had close contact with a confirmed case of COVID-19, to self-isolate for 14 days. Further updates from the Ministry of Health regarding COVID-19 can be found on its website. Businesses should monitor these updates regularly. In addition, the State Services Commission has recently issued guidance for public sector employers.

If an employee, or one of their family members, close relatives or members of their household, has contracted the COVID-19 virus or is required to self-isolate in accordance with Ministry of Health guidelines, the usual position regarding sick leave will apply. That is, in the first instance, employees are required to use their sick leave entitlements to cover their absence from work if they are ill or if another person is dependent on them for care. If an employee has exhausted their sick leave entitlements, they may ask to use their annual leave entitlements with the employer’s agreement.  It is advisable for employers to let employees know if they are about to exhaust their sick leave entitlements so that the employee may choose whether or not to use their annual leave entitlements.

If an employee is in self-isolation (but not ill) and can work remotely, they would not need to take leave for their absence from work.

If an employee has contracted the virus or is otherwise required to self-isolate but cannot work remotely, employers may choose to let an employee take some paid ‘discretionary leave’ if their leave entitlements have been exhausted. Alternatively, ongoing absence from work due to illness or self-isolation may be unpaid. However, if the employee is not able to return to the workplace because they have been directed to stay away by the employer (even though they may not be ill, or if they became ill or were required to self-isolate as a result of a work trip) different considerations and obligations are likely to arise and legal advice should be sought.

Some employers are proactively asking employees to notify them of all travel plans, including personal trips, to assess the potential risks of such travel and to manage employee expectations in advance of returning to work. This includes considering whether the employee could work remotely if it is not possible for them to return to the workplace for some time after their return to New Zealand, and setting up such arrangements in advance

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