Today we’ll know what the conditions will be at Level 3 when the country moves out of the current lockdown. Bell Gully partner Liz Coats says it is time to start thinking about a possible return to our old workplaces. She outlines to Mark Jennings what employers and employees need to consider.

When we move to Alert level three will people working from home be expected to return to work?

Right now we are not sure about exactly what the Government expects from employers and employees at Alert Level 3. The Prime Minister has confirmed that further guidance will be issued on Thursday.  

Based on what we know at the moment, I expect that most people who are working from home at Alert Level 4 will continue to work from home at Alert Level 3. However, there may be some employees whose roles cannot be performed from home who may be able to return to work in certain sectors or industries.

What happens if an employee is unsure or worried about the safety of the workplace? Particularly if physical distancing could be an issue?

There is good, common sense guidance available from WorkSafe about measures that can be taken in the workplace to keep people safe, and employers should adapt those recommendations to the circumstances of their own business. They should also make sure that they communicate their approach to employees in advance – and if possible they should try and reassure their employees to the extent that they can.

If employees feel worried that their employer isn’t taking the necessary precautions, they should raise their concerns with their employer in good faith. It may be that the outcome is that the employee remains at home for a further period of time. Or it may be the employer can bring in some practical changes within the workplace that will reassure that employee.  

What practical things can employers and employees do to make returning to work safer?

Social distancing measures are a first step. These may include: isolating employees whose work can be done alone; limiting physical interaction between staff and customers; placing barriers between employees to enable them to keep a two metre distance from each other; and staggering rest and meal breaks. 

Then there are a range of policy changes that should be considered, like “no meeting” policies, requiring everyone who works at or visits a site to “sign in” when they arrive, and health checks and declarations.

Employees need to make sure that if they feel unwell, they don’t go to work. They need to seek help if they feel unwell – including support for any mental health concerns.

Should businesses let visitors enter the workplace or restrict entry to “Staff only”?

The Government’s guidance on Alert Level 3 may include rules about the extent to which visitors are allowed on the premises of different businesses. Any measures that reduce the number of people physically present in a workplace will inherently reduce the risk posed by Covid-19.  

If an employee thinks they might be in a high-risk category can they refuse to return to their usual workplace but still be paid?

The short answer to this question is that there isn’t a short answer. Instead, there are a range of factors to take into account before an employee could refuse to go to work.  

An employee who thinks they might be “high risk” should raise that with their employer. The Ministry of Health guidance suggests that the categories of “high risk” or “vulnerable” people are not hard and fast, so it may be necessary for the employee to get an opinion from their doctor about whether they are safe to attend work or not. If the doctor’s opinion is that they should not attend work, then the employee should consult with their employer about what this means for their work and their pay.  

If people need to continue working from home but a laptop on the kitchen table is not ideal is there any obligation on employers to improve this situation?

If an employee is working from home, then their home is their “workplace” and their employer has health and safety obligations to consider around the home workplace set up.  

The longer employees have to work from home, the more important it is that employers ensure they have assessed the home work stations and made sure they are fit-for-purpose.  

Practical steps that employers should consider include arranging for equipment to be sent to employees to enable them to work safely and requiring employees to undertake their own “audit” of home work stations. They should also be in regular communication to remind employees of the need to take regular breaks, and to ensure that their workspace is kept free from hazards, well-lit and ergonomic.

While Alert Level 4 is in place it is likely to be difficult to get new equipment delivered to employees at home, but this may change over time.

Are businesses able to restructure and make employees redundant even though alert levels are being relaxed?

The answer is yes – but if an employer has already applied for and received the Government’s wage subsidy, it could be more complicated.

If a business cannot sustain the employment of some or all of its employees, or the business simply no longer has a need for those positions, then the employer is able to reorganise their business accordingly. Of course, that prerogative must be exercised in good faith. Even though there’s a pandemic, normal employment law principles all apply. That means an employer can consult in good faith about a restructuring proposal with affected employees. 

If a company is getting a government wage subsidy for a worker, can it still make that person redundant?

If an employer applied for the wage subsidy after 4pm on March 27, 2020, then it was required to give a declaration which included a commitment to retain employees for the period of the wage subsidy, and to use best endeavours to pay them at least 80 percent of their usual wages or salary over that time. So, if an employer applied for the wage subsidy for an employee, and then made them redundant during the 12-week subsidy period, this will breach that declaration.

Provided the employer can show it did not act in bad faith when it gave its declaration, it seems to me that the risk of enforcement action by the Ministry of Social Development is low. But it is hard to tell when MSD will or won’t exercise its rights to take this kind of enforcement action, so employers should be cautious about their intended approach. Any employer in this situation should also consider whether an alternative to redundancy could be continuing to retain the employee, but only paying them the wage subsidy.

For smaller businesses and their workforces it can be hard to keep track of all the changes and requirements of the various alert levels – what is your advice to them in terms of staying abreast of the latest requirements?

I recommend reviewing the website regularly, as well as the various resources from MSD and the Ministry of Business, Innovation and Employment that are available and updated regularly.  

Otherwise, industry bodies like the EMA or Business NZ are a first port of call for employers, and employees can turn to unions as a good source of information.

*Bell Gully is a foundation supporter of Newsroom*

Mark Jennings is co-editor of Newsroom.

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