Last week the World Health Organisation officially announced Covid-19 (Coronavirus) as a pandemic. As of midnight last night, New Zealand implemented one of the world's tightest border controls to combat the spread of Covid-19, requiring all incoming travellers (regardless of residency status), to self-isolate for two weeks. Tomorrow the government will announce measures, that may give financial relief to businesses affected by the virus.
Despite the actual virus currently having a limited effect on New Zealanders the recommended measures to combat the virus are having, and will likely continue to have, a significant impact on many employers. Employers will be feeling the economic effects of this slow down. At the same time many workforces otherwise immune from the virus, are experiencing increasing levels of staff anxiety and the prospect of employees being absent due to self-isolation.
With rules around isolation changing daily, and rumours around employer obligations circulating through social media even faster, it is important that employers understand their obligations and have a plan.
As a starting point, and if you haven’t looked at it already, the Ministry of Health is providing regular updates on which categories of persons need to be isolated, depending on their previous travel and symptoms.
This site should be checked regularly and provides more reliable information than many media websites and opinion from so called experts. There is also no substitute for regular communication with your employees (remember your good faith obligation to be responsive and communicative). Employees will naturally be worried and checking in with them about how they are feeling cannot be overstated. They will likely also want to know whether you have a plan and will want to understand what it involves – both in terms of health and safety, pay (if they have to stay at home) and travel. As much as possible and where appropriate, try and involve staff in discussions and planning.
Once the plan is finalised, communicate it to all staff so everyone knows what is expected. If you need any help putting together a Response Mnaagement Plan, please contact me as i am able to assist here.
So what else do you need to know?
Health and Safety Obligations
In an employment law context, Covid-19 and anxiety arising from the current situation are both health and safety risks. As with all other health and safety risks, your obligation is to manage that risk and take all practicable steps to eliminate it where possible. If the risk cannot be eliminated, it must be minimised.
Elimination
Employees required to self-isolate
The government is requiring certain groups of people to self-isolate, depending on their previous travel, potential contact with those identified as having Covid-19 and those individuals with Covid-19 symptoms. Checking the Ministry of Health website regularly will inform you of who falls into these categories.
It is imperative that if you have a staff member who is required to self-isolate, they must not be allowed to attend work until they have completed the required period of isolation and are symptom-free.
Depending on the staff member’s health and the role they perform, the individual may be able to continue working remotely from home. Where appropriate, it may be worthwhile to make sure staff are set up to work from home now, in the event they are required to self-isolate later on.
Employees who are otherwise unwell
Unfortunately, seasonal illnesses such as the flu and other “lesser” viruses won’t take a holiday just because Covid-19 is here. Employees who are too unwell to be at work for any reason should stay home. You can direct them to go home if they refuse, on health and safety grounds. At this point, they don’t need to isolate themselves for 14 days and they should be allowed to return to work when they feel well.
People who are anxious
For most individuals, their chances of catching Covid-19 let alone suffering from it is highly unlikely. However, for many, the fear that it could happen is very real. On the one hand it is important not to feed that anxiety and suggest individuals stay at home. On the other hand, you may have some employees whose anxiety may be a genuine health and safety issue in itself.
Where an employee requests leave due to genuine anxiety, you should allow them to take leave. If they are able to, they should be allowed to work from home as an alternative to leave. If EAP services are available, offer them.
If the employee cannot work remotely and instead takes sick leave, the usual rules around sick leave and medical certificates apply. If you have any concerns about whether the leave is genuine, you can request a medical certificate before 3 days’ leave at your own cost, or require the employee to provide a medical certificate after three days’ leave (assuming the leave being taken is leave in accordance with the Holidays Act).
Employees who are fearful of others
The saying goes that disasters bring out the best and worst in people. Already we are hearing of stories of employees who don’t want to work with John because he went to the “Tool” concert or Carla whose mother went to Venice at Christmas. Unless John or Carla are sick and/or meet the Ministry’s requirements for self-isolation, there is no reason to send them home just because others demand it. Ultimately, however, if any employees begin to, or continue to behave unreasonably you may need to take further action - please contact me for advice on this.
Minimisation
Even if all your employees remain at work, you will need to think about what steps you can take to minimise the risk of harm from both Convid-19 and potential anxiety.
For each business, the particular steps needing to be taken will depend on the individual operations. For example a workplace which normally involves high levels of person to person contact or meetings with large numbers of people will need to take different steps to prevent the spread of Covid-19 than for example, a workplace where everyone already works remotely or provides an online service.
Pay
Currently where employees are required to self-isolate due to government requirements, there will not be an obligation you to pay those employees.
You could however consider the following options:
Sick pay and/or annual leave if the employee agrees.
Additional special leave.
Require the employee to work from home if practicable.
This is an area which the government is likely address in coming days.
Where staff are not required to self-isolate but are otherwise unwell, the usual rules around sick leave apply. If the employee has a sick leave entitlement, sick leave should be paid in the usual way. If the employee’s sick leave entitlement has been exceeded, you should offer paid annual leave. If both are exhausted, you may wish to consider paid special leave on a case by case basis. However, there is no obligation to do so.
Travel
Currently there are restrictions on travel to some countries and in all cases, employees who travel overseas will be required to self-isolate for 14 days upon their return.
How travel is managed is up to each individual business, bearing in mind the type of work the employee performs, the needs of the business, the risk to others if the employee was to become unwell and the ability for the employee to work from home.
As a minimum, you may wish to require all staff who intend to travel overseas to register their travel plans with you. Further, you may wish to ensure that all leave requests provide for sufficient time to cover isolation periods upon return to New Zealand. If the current leave application is not long enough you should discuss the issue with employee directly before they go.
Employees should take extended leave or be prepared to take leave without pay when they get back. Like many employment situations, such a decision would need to be made on a case by case basis. It would require consultation with the employee concerned, and weighing the risks to others and the business against the employee’s need to travel.
Arguably, if you had lawful and reasonable grounds to prevent an employee from travelling and they decided to travel regardless, in exceptional circumstances it is possible you could ultimately treat their decision as a disciplinary matter. However, I would recommend that you seek advice in the first instance.
Disclaimer
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.
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