On 17 August 2021, the Government announced New Zealand would again be entering into Alert Level 4, following a confirmed case of COVID-19 in the community. It has been over a year since New Zealand was last at Alert Level 4, but despite that, the legal issues are just as thorny as ever. 

Do I get paid if I can’t work remotely?

Many employees (who are non-essential workers) may be unable to work remotely during the Alert Level 4 lockdown. Factory and retail workers are examples of such workers. There is not yet any clear case law on the pay issue, but there are cases currently working their way through the courts.

Our view is that non-essential workers who cannot work remotely during the Level 4 lockdown are not entitled to pay. This is because the inability to work has arisen as a result of the operation of law (the Government has issued an order pursuant to the COVID-19 Public Health Response Act 2020), not because of any direction by the employer. 

Do I get paid if I can work?

Employees who are deemed ‘essential’ or are able to work from home, and are ‘ready, willing and able’ to do so, will be entitled to full pay, even if the employer receives a wage subsidy (unless the parties have an agreement that states otherwise). 

Essential services 

There is a long list of essential services (or ‘Alert Level 4 businesses or services’, as the Order describes them), and otherwise exempt organisations. Businesses which fall within these various categories are able (and expected) to continue to operate those functions. There are still difficult issues to consider for these businesses, as they will now be operating in a highly restricted environment, and may be facing exceptional health and safety hazards. 

Many employers have some functions which qualify as ‘essential services’ and some which do not. They will need to consider carefully where to draw the line. 

Options for staff who cannot work 

Last year we saw employers take a range of different responses to employees who could not work in lockdown. 

In general, arrangements under which employees ask or agree to use some of their annual holiday entitlement over the lockdown period are lawful. There are however risks in this area; particularly if employers seek to direct employees to take annual leave, in a situation where it is not for rest and recreation but rather to comply with an order aimed at preventing the virus from spreading. 

We also do not recommend offering the ability to use paid sick leave to employees when they (or their dependants) are not sick. As with annual leave, deducting time away from work from sick leave when the statutory criteria are not met risks the employer being subject to a penalty, or an order to pay the value of the leave all over again. 

Some employers will consider reduced hours or pay (eg for employees who can work only in part from home). As with any contractual changes, informed consent will be needed from the relevant employees. Employers will need to give full information in relation to the proposed changes, including the employee’s right to independent advice, and the consequences of their decision to accept (or reject) the changes. Despite everything, the requirement of good faith does continue to apply!

Government COVID-19 wage subsidy 

On 18 August, the Government announced that a wage subsidy will be available to employers for this lockdown period. The wage subsidy will be available to all New Zealand businesses and self-employed people that meet the eligibility criteria, and have been impacted by the move to Alert Level 4. We are yet to hear what the criteria will be – we expect further announcements to be made over the coming days.

Employers should be mindful of their approach to the scheme, as any eligibility will likely factor in to the reasonableness of decisions concerning pay and leave, and restructures. 

Applications open on 9am on Friday 20 August 2021. Currently, applications will be open for two weeks.

Working from home

Keep in mind that your health and safety obligations still apply to employees who are working from home. To this end, take some time to check your employees have the equipment and support they need to work remotely. Discuss and address any health and safety risks that may exist. After last year, many employers will already have remote working protocols and policies in place. 

Vaccinations

For businesses performing functions which are considered to be ‘essential services’, the vaccination status of your workers may seem even more relevant than before. Vaccination is currently only mandatory for frontline workers at MIQ facilities and border services, and it’s clear that employers cannot require other employees to get a jab, in the absence of a contractual provision requiring this, or (possibly) widespread community transmission.

Despite the current community outbreak, it is still too early to say that unvaccinated persons pose a real risk, either to businesses providing ‘essential services’, or other workplaces (to which they will return after the lockdown ends). This would need to be assessed on a case-by-case basis.

But can employers require employees to disclose their vaccination status? For workers other than those at MIQ facilities and border services, the starting point is that workers cannot be compelled to disclose (or provide evidence of) their vaccination status to their employer. Generally, to request the vaccination status of your existing employees, employers need to have a lawful and reasonable purpose, unless a contractual power exists allowing you to do so (such clauses are few and far between). 

That said, businesses may have a lawful basis to request employees’ vaccination status where unvaccinated workers pose a genuine threat to health and safety of others, or where vaccination status may be relevant to work requirements (eg because of client or travel demands).

If you have questions in relation to these issues or any other employment questions arising from the impact of COVID-19, please feel free to contact our employment team.