Employment rights and duties in the event of an epidemic like Coronavirus/Covid-19 (Part 1) …

With Coronavirus (Covid-19) spreading rapidly in South Korea and causing lockdowns in Italy, there are growing concerns around the impact the virus may have in New Zealand.  If the virus begins its spread within New Zealand, it is very likely that staff absence and/or government measures will disrupt the workforce.  Following an employer’s recent decision to request its employee return to work in a public facing role 11 days after returning from Wuhan, China (the epicentre of the disease), it is timely to remind employers of their rights and obligations to employees in relation to:

• Sick leave;
• Obligations to keep employees and patrons/clients/customers safe;
• Relying on contractual provisions to protect themselves; and
• Dealing with quarantine measures implemented by the government.

Sick leave

The Holidays Act allows employees to take sick leave in the event that they, their spouse, or a dependent in their care becomes sick.  If an employee takes three or more consecutive days of sick leave, the employer may require the employee to produce evidence of sickness (most often this is in the form of a medical certificate).

In the case of a virus like Covid-19 which causes a chronic upper respiratory infection, it is likely that a large number of employees will not have enough sick days saved up to quarantine themselves or to recover from a contracted infection.  In this situation, an employer and employee may agree for annual leave to be taken instead.  Any such agreement between the parties should be recorded in writing.

If an employee runs out of all available leave, the employer may agree to let the employee take unpaid leave, or that the employee takes leave in advance.  If the employer cannot accommodate unpaid leave or leave in advance, an employee may be terminated (provided that a fair process has been followed), but this would be an extreme situation that should not be entered into lightly. 

Health and safety obligations

All PCBU’s or persons conducting a business or undertaking have to keep safe from harm their employees, patrons, clients and customers.  If there is an outbreak of Covid-19 in New Zealand, employers will have to take steps to ensure that sick employees are not exposing other employees or persons attending the workplace to risk of harm.  Employers may face penalties from Work Safe New Zealand where appropriate measures are not taken. 

Government measures

It is possible that the government will take steps to ensure the spread of Covid-19 is contained (for instance by putting in place quarantine protocols).  In that situation, some employees may not able to work despite potentially being ready to do so.  Employers in this situation will have to implement flexible working arrangements or pay their employees, unless they can rely on a “force majeure” clause or the principle of “contractual frustration”.

To read more about contractual protection available to employers, read Part 2 of this article.

Flexible working arrangements

In this age of digital conferencing, high speed fibre internet, and widespread access to laptop/computer technology, employers would be encouraged to take a more flexible approach to employees carrying out their duties.  Employers in the IT, legal, accounting, auditing, communications industries, and so on, will have the ability to minimize the impact of Covid-19 by putting in place flexible working arrangements.  Other employers, who require their employees to be physically present to do their jobs (particularly in primary services) are likely to feel the impact more severely. 

It is not clear whether, and how much, support the Government will provide to assist employers and/or employees from losses they may suffer in the event of a major epidemic.  Employers would be wise to explore options to insure themselves against a future disaster like this.  Employees may also wish to explore income protection insurance options.

If you are unsure of your rights or duties, it is a good idea to seek expert advice.  Getting things wrong can be very costly.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-priced Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced employment law team who can answer your questions and put you on the right track.