Yesterday I was asked by Radio New Zealand to provide my thoughts on the Coronavirus and employment law obligations during this time. See the original post here.
It's predicted the economic impact of the Covid-19 pandemic will be worse than the Global Financial Crisis, and depsite the government's $12.1 billion relief package, Finance Minister Grant Robertson says he expects people will lose jobs because of the impacts of the coronavirus.
So what rights do employees have at this time? We put some questions to employment law advocate Ashleigh Fechney.
Can my employer cancel pre-approved leave?
The easy answer to this is no, they can't. You've applied for that leave, and it's up to you how you use it. But I do understand that some employers will struggle with this. They might have to reduce staffing numbers if employees are going overseas and having to self-quarantine. In these situations, employers may need to become a little bit creative. There's nothing stopping an employee and an employer from reaching an agreement that may entice the employee to withdraw their leave.
Can they stop me from going overseas on my leave?
No. Your employer can't dictate what you do outside of your work, but they could enforce a self-isolation period upon your return. After all, your employer has obligations to keep their other staff healthy and safe.
Can my employer deny or reject a new leave request for international travel?
Absolutely, as with any annual leave, your employer is not required to accept it. So an employer may want to set some guidelines with employees about what they may or may not consider granting.
If I want to work from home, does my employer have to let me?
No. So, in a normal circumstance, a change of working location can only be done by mutual agreement. But in these circumstances, I would say that an employer would be required to seriously consider any application for someone to work from home. There's a few factors that an employer would need to consider: Is it reasonably practicable for the employee to work from home? What are the costs associated? What is the quality of internet? Are there cloud based services? Most importantly, they would need to consider the employee themselves. So if an employee is immune-compromised, if they're pregnant, or if they're elderly, there may be a stronger argument for allowing an employee to work from home. But I think it's really important to know that if an employee is concerned, there's nothing stopping them from self-isolating themselves, or requesting a period of leave to stay at home.
If it was feasible for me to work from home and my employer didn't let me and I ended up catching Covid-19, perhaps from travelling to and from work, or maybe someone else in the workplace got it, would they be liable in any way?
This is where things get a little bit tricky. So the questions would then become, was it reasonably practicable to allow the employee to work from home? And was it a fair and reasonable decision in the circumstances to reject that employee from working from home? This is going to have a lot of different questions that will be industry specific, and I think we do need to remember that an employer has an obligation to keep all staff healthy and safe, so sometimes that will mean allowing them to work from home
The government has announced their support package for those who have to go into self isolation or that are sick, or that have to care for someone that's sick. Does this mean that I won't need to use annual leave or sick leave?
No. As I understand it, the requirements of the government package is that the employees will need to use their legal entitlements first, and I understand it's only available for employees who are unable to work from home. I think it's important to know though that that grant may mean that employees are earning less than what they otherwise would. I think it's $585 for a full-time employee, or $350 for a part-time employee, but there's no obligation for your employer to top up that payment to what you would normally earn. But you may be able to come to an agreement, aside from that it could be paid special leave or other annual leave entitlements in advance.
What happens if my employer is required to close their business?
So this is a very real risk and concern. The first thing I would look at is whether they need to close it short term. So if an employer needs to close a business short term, you're going to need to look at the employment agreement. There are some clauses that allow for business to close short term in cases like this. But if it's an employer wanting to close their business, I would recommend getting legal advice before going here. Otherwise, if there's no clause, then if the business is required to close short term, it will be required to continue to keep paying its employees their minimum hours and if an employee is not able to make this demand, it will need to seriously consider whether it needs to conduct a restructure to reduce it staff. And on that note, if the business needs to close permanently, it will need to run a fair and proper restructure process.
So if an employer instead wanted to cut back someone's hours from what's in their contract, can they do that?
No. So again, if you wanted to change hours that can only be done by agreement, or through a fair and thorough restructure process. I think this is a concern and that both employees and employers should start considering their solutions now. Again, there's nothing against them and an employee coming to an agreement about part time hours.
Can my employer force me to self-isolate?
I would say yes. So, the first instance is if you've come home from a holiday, and you're required to self isolate, I would say your employee would be able to keep you at home for that period and that's because they have obligations to their other staff to keep them healthy and safe. On the other hand, if you're experiencing symptoms, and you don't have a reasonable explanation, bearing in mind that we are getting close to hayfever season, that your employer may be able to require you to stay at home in isolation for the same reason.
What about if the government closes schools? What position am I or people in then, can they take time off to care for their children? Will this still fall under the annual leave or sick leave policies?
So if a child is sick, then of course, it's just going to be covered by the Holidays Act. So an employee can take sick leave if they're sick, if their spouse or partner is sick or a dependent is sick. But with regards to self isolation and children perhaps studying from home, I believe this was addressed by the government, and I understand that that grant does extend to parents who are required to stay at home to look after children who are required to self isolate.
Is there anything else that both employers and employees should be thinking about at this time?
I think that employers need to seriously consider their ability to provide additional protections against the disease. This will be industry specific, and it may require a little bit of creativity. Some examples include increase hygiene standards, setting a no handshake rule and teaching staff about their hygiene practices. But there's some other options available like stopping all business travel, whether that be national or international. Implementing social distancing, so is it possible for employees to work further apart in the workplace? Again, can the employee work from home? And I've seen some businesses have what we call self-isolation rooms. So if an employee starts to become sick in the day, they've got somewhere they can isolate. And a bit of an extreme measure being thrown around at the moment, whether employers want to temperature screen their staff. If this is something that an employer wants to consider, it will be needed done in accordance with your employment agreement and the Privacy Act, and I would recommend getting legal advice before pursuing this.
Are workers protected from employers asking questions or doing temperature checks? If they implement it, would I need to comply?
No, you'd need to look at the employment agreement and what is in the Privacy Act. I would say it's similar to drug testing. So with drug testing, we know that in general, privacy does prevail, but in some industries, there's a very high health and safety risk, and so in those industries, that's when they allow it. This is, I guess, a bit of a one-off situation where we haven't really needed to consider temperature screening, so it's something that would need to be done very carefully and under great legal advice.
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