When natural disasters like earthquakes, floods, fires, tsunamis, or landslides hit, it may not be possible to immediately return to work.  What are the rights and obligations of employees and employers in such a case to provide work, to be willing to work, to not work, and to receive payment?

Employees may not be able to return to work:

There may be several reasons why an employee cannot work, including:

• the workplace is unsafe;
• the business is not operational (and/or work cannot be provided for another reason);
• the employee is unable to access their workplace (due to road closures, or their modes of transport being unavailable); or
• the employee is sick or injured, or they have to care for someone who is sick or injured.

Primary consideration: Health and Safety

The Health and Safety at Work Act requires that an employer provide a work environment that is not putting any employees, patrons, customers or clients at risk of harm or injury.  If after a disaster it is not safe to return to work, the employer cannot require employees to return to work until it is safe to do so.

An employee may lawfully refuse to work if they believe that carrying out work in their workplace would expose them or anyone else to a serious risk.  

The employee’s duty of good faith requires that the employee first inform their employer as soon as possible of their concerns, so that the employer has an opportunity to fix the issue.  If the employer fails to, or refuses to, remedy the problem the employee should tell their employer that they intend not to return to work until then, even if the employer insists on it.

If the employer still refuses to address the issue, or is putting pressure on the employee to return to an unsafe workplace, the matter can be raised with WorkSafe, who may investigate and take action against the employer. 

How to deal with time off work?

The laws in New Zealand don’t create any specific requirements around what leave or payment an employer must provide to their employees in civil emergencies, but an employment agreement and/or workplace policy may provide for it.  In that case, the employer must pay the employee according to what is set out in the agreement or policy.

Often, agreements are silent on these sorts of events.  In that case, it will be the responsibility of the employee and employer to communicate with each other in good faith and look for a solution together.

An employee and employer may consider one of the following options to deal with time off work. 

Special leave by agreement:

Some workplaces might agree to provide ‘special leave’ at their own election for these situations, where there are no other entitlements under the agreement.  This may especially be the case if the employer has financial reserves available to draw on and they wish to retain their staff for when they are back up and running. 

Some employers may also have insurance which provides assistance, but often “acts of God” are not covered. 

Sick leave:

It is possible to use sick leave where an employee or one of their dependents have been injured or has become sick as a result of the disaster. 

Annual leave:

An employer cannot require and employee to take annual leave for purposes other than rest and recreation, but if an employee applies for annual leave, the employer can agree to allow it. 

No annual or sick leave available:

Where an employee does not have any annual or sick leave available, they may ask the employer if they can take annual leave or sick leave in advance.  The employer will then deduct this from their entitlement when they become entitled to it in the future. 

If the employee does not work long enough to earn future leave to repay the employer, the employee may be asked to repay the leave entitlement in cash (or by way of deduction from their final pay). 

Some employees may have a transferred public holiday or an alternative holiday day available.

The parties may also agree that the employee take unpaid leave, especially if special leave or other leave is not practical, available or agreed.

Shift workers:

Shift workers are in a slightly different situation to other employees.

If a shift worker is still able to come into work, but their employer either can’t provide them with work or a safe workplace due to the disaster, then this will be a cancellation of the shift they were rostered for.

If an employer wants to have the ability to cancel shifts, then they must include it in their employment agreements. Otherwise, their employee will be entitled to full compensation for the hours they were rostered on to work, even if they did not work.

Where the ability to cancel a shift is included in an agreement, then ideally, employers must provide the employee with reasonable notice.  If reasonable notice is not provided, the employer may have to pay the employee reasonable compensation. 

What’s ‘reasonable’ will be different in each line of work. Read more about cancelling shifts.

Unfortunately, because nature disasters are often unpredictable, it makes it difficult to provided reasonable notice of a cancelled shift.

Once an existing roster ends, if the employer and employees have not agreed to a new roster, the parties will have to negotiate in good faith as to what should happen next (much like any other employee). 

Final thoughts:

As an employer, it is worth considering how to best look after your people, and in turn, your business. Taking proactive steps to prepare for civil disasters by including clear terms in an employment contract will avoid extra stress for both parties if the time comes.

Professional employment experts can help businesses to include a clause in their employment agreements and can also help employees to understand and plan according to their rights.

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 team who can answer your questions and put you on the right track.