Obviously the coronavirus (COVID 19) continues to be a hot topic of conversation at the moment.
With any outbreak of infectious disease, employers face a number of legal and practical issues. This is weighing on the minds of many of our clients following the growing rates of novel coronavirus overseas and our first confirmed case now in New Zealand last week.
Under the Health and Safety at Work 2015 Act, all businesses have a duty to eliminate or minimise risks and hazards to their workers and any others who may come to the workplace. A workers’ health and safety is paramount. The duty will extend to eliminating or removing hazards connected with coronavirus, so far as is reasonably practicable.
Unfortunately, the legal and practical issues associated with coronavirus and employment are not always straightforward. Below is some further information you should consider in order to formulate any short to long term precautionary strategies for your business.
STAYING AWAY FROM WORK
You can require an employee, where this is a true risk of spreading coronavirus, to remain away from the workplace. The New Zealand Ministry of Health has provided guidance on actual risk and this is what you should refer to in such a situation. Currently, it says that individuals who have returned from Mainland China or have been in contact with someone who has COVID 19 are expected to self-isolate for 14 days.
So, extending the restriction more widely is unlikely to be reasonable or necessary, for example with an employee who has travelled through Asia or Europe.
PAYING WHILST AWAY FROM WORK
If an employee is away from work because they have been infected with COVID 19, they will be entitled to sick leave.
If an employee travelled to a high-risk country and was caught up in the precautionary restrictions when they returned to NZ, you would require them to remain away for 14 days. This employee is “ready and willing” to work, but you are preventing them from doing so. The starting point is they should be paid but you should discuss with your employee possible alternatives – for example, are they able to work remotely?
An employee, despite now knowing about the current restrictions, may intend to travel to a high-risk country. A request for leave from such an employee will need to be extended by the 14-day isolation period.
WHAT IF THE EMPLOYEE IS OFF WORK BECAUSE OF THE RISK OF CORONAVIRUS, BUT DOES NOT ACTUALLY HAVE THE VIRUS?
There will be situations in which an employee is not at work because he or she has been exposed to the risk of infection, but neither is actually infected or sick.
As a general rule, the employee is not entitled to paid sick leave if there is no identifiable illness or injury (unless the employment agreement says differently). However, many employers may agree to recognise this as sick leave in the circumstances. Any agreements made should be recorded in writing, even if simply by email or text.
Even if the employee is not on paid sick leave, the employee may still be entitled to be paid during their absence.
WHAT IF THE EMPLOYEE IS COMPULSORILY QUARANTINED?
In these circumstances, the employee is not ready, willing and able to work. The starting point, therefore, is that the employee is not entitled to be paid.
However, before an employer decides not to pay, they will need to consider other options, such as working from home, working different hours or taking other measures to avoid personal contact. The employer and employee may also agree to the employee using other entitlements, such as sick leave or annual holidays.
Most employers will want to do the best by their employees, and assist them where possible. Even so, payment will not always be an available or acceptable option, particularly if the issue is widespread or recurring.
WHAT IF AN EMPLOYEE NEEDS TO STAY HOME TO CARE FOR A CHILD?
There is already a possibility of school closures, or of children otherwise staying home (or being made to stay home) to minimise the risk of infection, in which case some employees may also need to stay home to care for their children.
If the child is sick, the employee is entitled to paid sick leave, at least until that runs out. However, if the child is not sick, then unless the employment agreement provides for payment, the employer will not be obliged to pay an employee who needs to stay at home to care for the child. The employer and employee can of course agree on different arrangements.
DOES AN EMPLOYEE HAVE TO BE PAID IF THEY ARE VOLUNTARILY STAYING AWAY FROM WORK?
Some employees may want to voluntarily remain at home due to a risk of exposure to the virus, and not wanting to run the risk of infecting others.
As set out above, it is possible that the employer does not have any obligation to pay the employee. However, if an employer does not elect to reach an agreement whereby the employee is paid for such an absence, the employee may feel that they have to attend work after all. As such, before making a decision to withhold payment to employees proposing voluntary quarantine, employers should ensure they have a clear understanding of the extent of the risk that may be posed by that employee attending work, considering its obligations to other people in the workplace who may be impacted.
General information on the risks posed by coronavirus and ways of managing those risks can be found at www.moh.govt.nz.
CAN EMPLOYERS REQUIRE EMPLOYEES TO UNDERGO MEDICAL TESTING?
In short, no - employees must consent to medical testing.
An employer would most likely be justified in requiring an employee to stay home (and possibly in not paying that employee,) if he or she refused to take a test to confirm infection, where there was a reasonable chance of that having occurred.
WHAT CAN EMPLOYERS DO NOW?
We recommend employers have contingency plans in place and proactively consider their employment obligations and overall business issues and what their response might be. Employers should take a practical and reasonable approach to look at their own business situation and respond proactively.
Consultation underpins the employment relationship. Providing regular updates to employees, and providing guidance as more factual information about coronavirus comes to hand, will continue to be important. Employees need to know that their employers have plans and contingencies in place and that they will be protected.
Aside from health and safety considerations, employers would be prudent to recall the overarching obligation of good faith, which applies to all employment relationships, when making decisions on how to deal with individual circumstances.
We encourage employers to discuss and agree a format for dealing with individual risks in a way that is suitable to both parties, whilst ensuring wider compliance with duties under the HSWA. We recommend such agreements either company-wide or with individuals are clear and in writing, to avoid any doubt.
There are clearly could be plenty of challenges ahead for employers. For some employees taking precautionary measures regarding coronavirus will not be a worry, while others may suffer stress if they are put in situations where they think there may be a risk, real or perceived, of contracting coronavirus.
Employment New Zealand’s link for Employer information is here but if you have any further questions about how the coronavirus may impact your company’s employment obligations, then you should seek further advice on this.