COVID-19 Employer Obligations at Alert Level 3

Apr 21, 2020 10:08:51 AM

The Government announced that New Zealand will move into Alert Level 3 at 11:59pm on Monday 27 April. In preparation for the move to Alert Level 3, the Government produced guidelines on what activities each type of workplace can and cannot do under each alert level, including Alert Level 3. This can be accessed here.

The Government has also provided information on what businesses will need to have in place if they are to operate at Alert Level 3.  The Ministry of Business, Innovation and Employment (MBIE) will set up a self-accreditation regime and will help businesses put together a worksite plan. More specific information regarding this will be made available in the upcoming days.

Below we discuss key considerations from an employment law perspective which your business may currently be considering, especially in light of any alert level change.

Workplace Obligations

In managing the Covid-19 situation, the Government has consistently advised that the overarching consideration is that employers and employees must work together to slow the spread of COVID-19, protect New Zealand and keep each other safe.  

Throughout this situation all employment law obligations still apply, including those set out in the Employment Relations Act 2000 such as the requirement to act in good faith and consult with employees. Employers must also comply with applicable employment agreements and cannot unilaterally vary any terms and conditions of employment.

Employees returning to work

At Alert Level 3, everyone must still work from home unless that is not possible. Workplaces can be reopened if the work cannot be done from home and the workplace can operate consistently within public health guidance.  This includes recording who is working together, limiting interaction between workers and maintaining hygiene measures.

If an employee has contracted COVID 19 or has had close contact with someone with the virus then they should not return to work.  The employee can access sick leave or annual holidays. If their entitlements have been exhausted you can discuss taking special paid or unpaid leave.  If you are receiving the wage subsidy, you must pass the full amount received to the employee.  If your business is an essential service, you may also be able to access the Essential Workers Leave Scheme.

In some circumstances employees may not want to come into work because of their own health concerns or because someone they live with may be at a higher risk of severe illness from contracting COVID-19.  It is important that you discuss and consider your employees concerns.  You should consider whether the employee can work from home or whether you can change their workplace arrangements to minimise risk. 

If an employee is however unable to return to work because of health concerns or because they can’t access childcare and schools are closed then you should discuss and agree leave arrangements including using annual leave or special leave.

If your employees are working from home and they are continuing to perform their usual duties then they should continue to be paid in the ordinary way, unless you have agreed alternative arrangements.

Health and Safety obligations

Employers also need to ensure they meet their health and safety obligations. This includes both in the workplace if these are open under Alert Level 3 or 4 and also the employees home work environment.

In the workplace employers must take health measures to keep the workers safe. This includes:

  • Maintaining a distance of at least one metre between workers
  • Recording who is working together
  • Limiting interaction between groups of workers
  • Maintaining high hygiene standards including disinfecting surfaces
  • Use of PPE to stay safe at work if appropriate.

Whilst employees working from home have to take reasonable care for their own health and safety, employers should also review the respective home environment to ensure it is adequate. This includes:

  • Establish a check-in procedure. Make sure that regular contact is kept with all staff to check their mental wellbeing and ensure they are taking necessary breaks.
  • Make sure each employee has established a safe home workspace including all the necessary equipment.  It will be easier to send employees equipment such as work chairs at Alert Level 3.
  • Consider providing some training on how to effectively work from home and manage isolation concerns.

If an employee has health and safety concerns, they can raise it with their health and safety representative, union, or notify WorkSafe.

This article was written by Douglas Erickson Employment Lawyers and has been posted with their permission. It is intended for general information purposes only and should not be used as a substitute for professional legal advice.