Covid-19 increases employers’ obligations to workers

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Wellington, August 24, 2021

Employers and employees need to work together to protect New Zealand and keep each other safe during all Covid-19 alert levels. This means that the obligations to contract workers on a regular basis and to act in good faith are more important than ever.

Employment law still applies to all employment relationships, regardless of the circumstances that we find ourselves in, including during a pandemic or a natural disaster:

Employers must have a written employment agreement (employment contract) for every employee, and employers and employees must do what that agreement calls for.

Employers must keep each written employment agreement up to date, including documenting in writing any changes to any terms and conditions of employment you have agreed.

Employers and employees must meet all employment laws and any other relevant contractual conditions to change any employment arrangements.

Employers must engage with union representatives, where a union represents the employees before any changes are made to collective employment agreements.

Employers must comply with all minimum employment standards and with the Employment Relations Act 2000.

Changes to Alert Levels

At each alert level change, employers and employees should first talk about whether the employee can continue to work normally and how the employee can work safely at home or their place of work.

Can employers force a person asked to self-isolate to work?

No. Employers must not make anyone come to the workplace if they are sick with Covid-19 or have been required to self-isolate under public health guidelines for the pandemic. If they do, they are likely to be in breach of their obligations under the Health and Safety at Work Act.

Can employers compel workers to attend office or workplace?

It depends. If an employee is in the higher risk group of contracting Covid-19 (as per the advice of the Ministry of Health), they may be able to work if they and the employer agree that the risks of being at work can be appropriately managed.

Some Yes and No answers to all employers and employees

Can an employee refuse to attend work?

An employee may say ‘No’ to work at their usual workplace if they believe that being at their place of work would expose them, or anyone else, to a serious risk of being infected with Covid-19, or any other health or safety risks.

If this is not the case, an employer may consider that the concerned employee has abandoned their work. If an employee is working from home, they must be paid at the same rate as mentioned in the employment agreement. If an employee is sick, they may take sick leave.

Sick leave entitlements

If an employee cannot work from home and need to stay at home, their employer may be able to apply for financial support to pay the employee if they meet certain criteria.

If an employee cannot work normally (e.g. normal number of hours), they should discuss with their employer what options are available.

If an employment agreement has shift hours and/or days of work, then an employer cannot change them without obtaining the agreement of the employee.

If the employment agreement says that an employer can cancel or move the rostered shift of an employee, the employer must have a shift cancellation clause that tells the employee (a) how much time in advance they have to give the employee before they cancel their shift, and (b) the financial compensation if the employer cannot give the employee a reasonable advanced notice about the cancellation.

If the employer does not give provide enough advance notice, they have to give the employee reasonable compensation.

Also, the employer must ensure that cancelling the shift does not breach the employment agreement. For example, if an employment agreement has a minimum number of hours or states the number of hours that an employee needs to work, the employer must make sure that they give the employee and pay for that number of hours.

There are some guidelines about reasonable cancellation time and reasonable compensation.

For information on what alert level New Zealand is currently at and general guidance for different alert levels, visit the covid-19 website(external link).
Find out if your business can operate at alert level 4 — Unite against COVID-19(external link)
Workplace operations at Covid-19 alert levels — Business.govt.nz(external link)

 

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