October 19, 2021
Employment
Employers
Ten important facts every business and their employees should know about COVID-19 and the Delta variant in the workplace
While there is more information to know, these are key points everyone should be aware of.
1. Employment law has not changed due to COVID-19
Employment and health and safety laws still apply at every COVID-19 alert level.
Employers cannot reduce their employees’ legal minimum employment rights, this includes:
- the minimum wage,
- annual and sick leave, and
- having a written employment agreement.
Both parties must always act in good faith. This includes always being open, honest, and communicative with each other.
2. There are specific conditions if an employer wants to change the terms and conditions of an employee’s work arrangements
If there is an existing employment agreement, the employer can only change it if the employee agrees.
- When making changes to their terms and conditions of employment, including redundancy, or reducing hours or wages, the employer must follow due processes. The main processes are:
- Undertake a “workplace change” process (make a plan). Employers must consider other options first and follow a fair and proper process.
- Consult with employees and/or a union (if applicable).
- Pay redundancy compensation if it’s noted in the employment agreement or has been negotiated with the employee and agreed by both parties.
- Record in writing any agreed changes to the terms and conditions of employment.
3. Different alert levels dictate when employees can go to the workplace
COVID-19 alert levels specify when a employees can go to the workplace and any conditions that apply.
The general rule is: if an alert level allows it, the employer can require employees to return to the workplace, subject to conditions such as the employer following health and safety rules, and any agreements that were made between the parties. Employers should discuss any return to work with their employees in good faith first.
Employers need to assess whether or not work performed by their businesses are covered under the current Government Public Health order.
Businesses — Unite against COVID-19
4. Employees’ rights to have a safe workplace have not changed
Health and safety laws and public health guidelines still apply in the workplace (for all workers, contractors and customers).
Employers and employees should talk about whether they can continue to work normally and how employees can work safely at home or at their place of work.
5. Work can only be required to be done by a COVID-19 vaccinated worker under specific conditions
Businesses cannot require any individual to be vaccinated. But they can require that certain types of work, roles or positions must only be done by vaccinated workers if there is a high risk of contracting and transmitting COVID-19 to others. To do so, businesses must do a proper risk assessment to decide this.
Government Public Health Orders can also require that certain types of work must be done by vaccinated workers, for example, in relation to border workers (currently), and certain workers in the education sector (from 1 January 2022) and health sector and disability sector (by 1 December 2021).
6. Employers cannot require annual leave to be taken by employees unless conditions are met
- Employers can only require employees to take annual leave, if employees agree to it after a discussion in good faith. They cannot force or make employees take advanced annual leave.
- Employers can agree to requests of advanced annual leave, but they don’t have to.
- If the parties cannot reach an agreement, the employer can decide when annual leave will be taken if they give their employee at least 14 days’ notice.
- Employers cannot make employees take sick leave if they are not sick.
7. Employees working normal hours must be paid their normal pay
Under employment law, employees must be paid for every hour they work at their agreed wage rate. This is subject to the terms and conditions of the employment agreement.
When employees are not able to work their normal hours during different COVID-19 alert levels, employers and employees (or unions, if applicable) should discuss what options are available, including the use of wage subsidies.
8. Only employers and the self-employed (contractors) can apply for the wage subsidy
- An employer can only limit the wages or salary of an employee to the subsidy amount if the employee agrees to it. Otherwise, they should use the subsidy to help pay the full amount, as per the employment agreement (contract).
- Eligible businesses can apply for the wage subsidy for all types of employees, including full-time, part-time, casual, or fixed-term (not for the self-employed contractors).
- Employers must meet specific tests to show they have been impacted due to the alert level changes.
- The employer must pass the subsidy to the employees and cannot fire them while they are receiving the subsidy.
- Employers can also get assistance for employees who get a COVID-19 test (Short-Term Absence Payment) and those who are required to self-isolate (Leave Support Scheme).
- The conditions for getting the wage subsidy (and the payment and scheme noted) are available on the Work and Income website.
9. Information on financial support is available via the COVID-19 financial support tool
Employers and employees can access the COVID-19- financial support tool to see what they can get.
Employees can contact the Ministry of Social Development via the Work and Income website if, for example, they have been made redundant or are in financial distress.
Also, employees who think the employer is misusing the wage subsidy or Leave Support Scheme can make a complaint.
COVID-19 financial support tool — Unite against COVID-19
Help for you and your whānau during COVID-19 — Work and Income
10. For legal advice or representation, contact Lawhub:
Phone: 03-926-0040
Email: info@lawhub.nz
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Employment and health and safety laws still apply at every COVID-19 alert level.
Employers cannot reduce their employees’ legal minimum employment rights, this includes:
• the minimum wage,
• annual and sick leave, and
• having a written employment agreement.
Both parties must always act in good faith. This includes always being open, honest, and communicative with each other.
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