With COVID-19 reaching our shores last week, employers have a compelling reason to prepare for the legal issues coronavirus may raise for them and their employees. Liz Coats and Tim Clarke, Bell Gully partners in employment law, explain.
Outbreaks of infectious disease are not entirely uncommon (we have of course seen outbreaks of measles and swine flu in recent years), but the employment and health and safety issues regarding coronavirus are not straight-forward. There is no “one size fits all” approach that will work for every workplace.
There are some things all employers can, and should, do however. As a starting point, all New Zealand employers should monitor information about the disease from trusted sources – in particular, official Ministry of Health announcements and guidance. WorkSafe and MBIE may also provide relevant and useful resources from time to time. Use this information.
There is also no substitute for regular, timely and easy to understand communications with your employees about your response to the evolving issues. It is essential to consult with your people about your response and approach, and keep them informed if there are any changes.
We recommend that New Zealand employers take the time now to consider the issues outlined in this high-level guide in planning for the possibility that one or more of their employees is affected by coronavirus in some way.
Sick leave entitlements
Under the Holidays Act, paid sick leave is available for an employee who is sick or injured, or who is required to care for a dependant who is sick or injured (provided that the employee has six months’ continuous service). The minimum entitlement is five days of paid sick leave per year, but this can accrue from year to year (up to 20 days under the Holidays Act).
Some employers adopt a more generous approach to sick leave than applies under the Holidays Act. This may arise from their employment agreements or policies, or on an “ad hoc” basis in specific circumstances.
If an employee has exhausted their paid sick leave entitlement but requires further leave for either their own or a dependant’s sickness or injury, they may take unpaid sick leave. They may also request to take paid annual holidays (if they have entitlement available, or if they seek to use annual holidays in advance of entitlement) in order to maintain some form of income. If a request to take annual holidays is made, an employer can agree to this.
However, an employer is not entitled to require an employee to use paid annual holidays once their paid sick leave entitlement is exhausted.
If one of your employees contracts coronavirus (or is otherwise unwell), or if they have a dependant that requires care for coronavirus or some other illness, then they are entitled to sick leave. If no sick leave entitlement is available they may be entitled to annual holidays – both in accordance with the parameters outlined earlier.
From a health and safety perspective, employers should encourage such employees to remain at home until they no longer exhibit any symptoms of the relevant illness. This is a major step that employers can take in helping to prevent the further spread of disease, and is best practice for any event of this nature.
Duties under the Health and Safety at Work Act 2015 (HSWA)
A range of health and safety obligations apply to employers as Persons Conducting a Business or Undertaking (PCBUs) under the HSWA.
Among other things, PCBUs owe a duty of care to ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU (while those workers are at work in the business or undertaking), and workers whose activities in carrying out work are influenced by the PCBU, while the workers are carrying out the work.
In addition, “workers” (which includes employees) owe duties under the HSWA to take reasonable care for their own health and safety so that their own actions or omissions do not adversely affect the health and safety of other persons.
Compulsory self-isolation / quarantine
Self-isolation measures are currently being imposed on individuals who return to New Zealand from overseas countries where the coronavirus is more widespread. Self-isolation is also being required from individuals who come into contact with any person who has contracted coronavirus (for example, close family members who were with that person when they developed symptoms). Under these measures, individuals are required to remain home and avoid public places for 14 days.
As an employer, you should also take steps to prevent the further spread of disease, and this will include taking steps to ensure that your employees comply with relevant Ministry of Health directions concerning compulsory self-isolation.
It is possible that self-isolation requirements will continue to broaden as the virus spreads and/or more is known about how it is transmitted.
If one of your employees is required to self-isolate but is not necessarily unwell, then they should not come to work.
This is not a straight-forward situation. An employee who is required to self-isolate because of Ministry of Health directions could be unwell (so the rules relating to sick leave would apply). On the other hand, the employee may in fact be well, but not ready, willing and able to work (because this is not permitted), so it is arguable they would not be entitled to payment from their employer. We recommend a case-by-case approach be taken to each compulsory self-isolation situation (at least while this remains relatively unusual).
Before any employer withholds pay from an otherwise healthy employee who is in compulsory self-isolation, it would be consistent with the employer’s good faith obligations to explore alternative solutions with that employee. Working from home, working from a different location, or different working hours that limit contact with other people would all be options.
The employee may also request to use annual holidays in these circumstances.
Although compulsory self-isolation and quarantine measures are likely to only apply in certain defined circumstances, some employees may choose or wish to stay home and not attend work out of fear of contracting the virus.
Under the HSWA, employees can refuse to work if they have reasonable grounds to subjectively believe that the work that they are required to perform is likely to cause them serious harm. This could well include situations where an employee has a reasonable concern about the possibility of contracting coronavirus (or any other disease) in the workplace.
However, before refusing to perform work, the law requires an employee to attempt to resolve their concern with the relevant PCBU – that is, their employer – as soon as practicable.
Other countries with limited confirmed cases of coronavirus are not advising people to self-isolate unless they have symptoms or have been to affected areas. The advice from New Zealand’s Ministry of Health is similar. This implies that generally accepted medical guidance is there is only an immediate health risk in those particular situations. However, employers should consider each individual case raised by employees on its own merits in good faith and with an open mind.
If one of your employees wishes to self-isolate voluntarily, as an employer you should exercise good faith in seeking to understand the reasons for the employee’s concerns, and considering measures that can be put in place to address these concerns. This is consistent with both the statutory duty of good faith as well as the specific health and safety consultation obligations applicable under the HSWA. The employee themselves also owes statutory obligations to seek to resolve their concerns with their employer before refusing to come to or perform work.
If the employee still chooses to remain home, but there is no apparent “good reason” for concern at the employer’s workplace or because of any illness on the part of the employee, then they are unlikely to be entitled to be paid while they remain at home, and it would not be a sick leave situation.
There may be alternative arrangements that can be reached to allow the employee to continue to perform paid work, like working from home, or annual holidays, as previously mentioned.
In the event that a child contracts coronavirus, it is possible that a response measure will be the closure of that child’s school as a preventative measure to protect against the further spread of disease. Such closures are permitted under the Health Act 1956 and Education Act 1989 in certain circumstances.
A closure of this nature may impact your employees if they are required to care for children who have been required to stay home.
In these circumstances, we consider it is most likely if the child is unwell, then the employee is entitled to sick leave (or annual holidays if no sick leave is available) in accordance with the parameters outlined earlier.
If the child is not unwell, but is unable to attend school because it has been closed, then the employee is not entitled to sick leave. The employee may be able to take annual holidays (with the employer’s agreement) and/or the employee and employer may reach their own agreement as to alternative arrangements. If the employee is able to continue to perform work from home, then they may be able to continue to be paid for work performed, for example. However, if no alternative arrangements can be made and the employee does not wish to take annual holidays (or has no entitlement available), then the employer is not required to pay the employee while they remain at home with a healthy child.
Coronavirus in your workplace
In the event that there is a known case of coronavirus within your workforce, then it is likely that other employees who came into contact with the infected person will be required to self-isolate/quarantine in accordance with Ministry of Health guidelines. In addition, as an employer and PCBU under the HSWA, you will need to consider whether your offices should be closed (depending on the extent to which the person with the virus displayed symptoms at work and came into contact with others in the workplace).
In this situation, we consider a more careful analysis will be required in order to assess whether the employer is required to pay its employees who are in self-isolation/quarantine but not actually unwell.
One example might be that if an employer unreasonably exposed their employees to the person who had the virus (by requiring that unwell person to remain at work when they clearly had symptoms of the disease, for instance), then it may well be unreasonable for the employer to withhold pay from employees who are later required to self-isolate.
Medical testing and medical certificates
There is no general legal right for an employer to require employees to undertake medical testing. Such testing can only occur with the employee’s consent. Nor is an employee required to provide the outcome of any such testing to their employer unless they consent to this.
If an employer believes that an employee is not genuinely unwell (and therefore does not have a genuine claim for paid sick leave), then the employer may require the employee to provide a medical certificate as proof of sickness in accordance with the Holidays Act.
What to do now?
The information about coronavirus continues to evolve. What may be the “right” or most appropriate answer may change over time.
Regardless, it would be helpful for employers to develop some form of broad policy or decision-making framework to ensure that your organisation can respond swiftly and decisively to any coronavirus-related issue that affects your employees.
Employers should involve their employees in the process of developing any such policy or framework, including good faith consultation and consideration of any particular practical issues that employees may raise. As noted, communication is key. Keeping employees updated on any policy or decisions, and any changes to that policy, is important and should be a priority.
Finally, every specific case and situation needs to be considered on its own merits. Wherever possible, employers should consider the particular circumstances of each individual employee when decisions come to be made about coronavirus issues.
Bell Gully is a foundation supporter of Newsroom