In light of the recent natural disaster and flooding which is impacting various regions throughout the country, the health, safety and general wellbeing of people should be the main concern of all employers. All parties to an employment relationship should remember to keep in regular contact and deal with each other in good faith, including about managing work and considerations such as working from home, payment obligations, taking leave, etc. There may be different reasons in terms of why an employee cannot work following the extreme weather event the country is experiencing. These can include:
An employer may be unable to provide work for employees who are willing and able to carry out their agreed hours of work, for example – if the employer’s premises has been damaged by the floods and/or it is not safe for them to be at the work premises.
Employees can’t access the workplace because of restrictions not directly related to their own workplace and out of their employer’s control, for example - road closures, damage to infrastructure, safety issues relating to adjoining buildings or evacuation due to flooding, etc.
An employee (or their dependant) is sick or injured and unable to work.
An employee has to care for a dependant because usual care is unavailable, for example – the directive from the Ministry of Education about imposed childcare and school closures.
An employee is willing and able to work but their usual mode of transport is unavailable, for example – the vehicle was damaged by flood water.
If working from home, or other options cannot be mutually agreed, then the question of ‘who pays’ is likely to boil down to who is defaulting on their obligations to work, or to provide work under the terms of an employment agreement, for example:
If a children’s centre or school is closed due to the Ministry’s directive, but staff are ready, willing and able to work, then the employer is defaulting and should pay staff their normal pay;
If employer has work available and their premises has not been damaged by the floods, but an employee is unable to get to work due to the roads being closed, or their vehicle being damaged and therefore they are not ready, or able to work, then the employee is defaulting and the employer is not obligated to pay them their normal pay.
However, we cannot assume that time away from work in these circumstances would be either paid or unpaid without looking at the individual employment agreement, workplace policies and the specific circumstances to see if the type of situation currently be faced is covered and the extent of any specific contractual obligations that might apply.
If it’s not in the agreement, then it is up to both parties to talk about it in good faith and agree what the time away from work will be classed as, or what other alternative options might work, e.g. working from home.
If your employee's partner or dependent family member isn’t injured or sick but he or she requires care, e.g. because their child's school is closed, the employee can’t take sick leave because their dependant is not sick or injured.
In some cases, employees may be able to continue to work while caring for their family, if you and the employee agree to this arrangement. If it’s not appropriate or possible for staff to continue working, both parties will need to agree on what basis the employee is off work and how that period is going to be managed. Options for leave and/or payment:
Annual holidays
Annual leave in advance of entitlement
Using any entitled alternative holidays
Discretionary special leave, either as provided for in employment agreements or workplace policies or by an ad hoc agreement between the employer and employee
Leave without pay
Employees can take sick leave if their partner or dependents are injured or sick and they have sick leave available or the employer agrees to extra sick leave.
Other paid or unpaid leave either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
Advance on wages, i.e. a temporary loan with the obligation to repay.
Whichever option you agree on may depend upon the circumstances, including the nature and extent of the disaster and how long it lasts for.
Once all leave entitlements under the Holidays Act 2003 and any negotiated additional leave or any anticipated leave entitlements run out, employees and their employers will need to consider further options in good faith (and consider the impact these options will have on business recovery later).
Employers should also carefully check any terms of their insurance policies, including about paying staff wages during a natural disaster and contact their insurer, or insurance broker as soon as possible.
Staff communication and support are very important. Following a disaster, contact staff as soon as possible to advise them of the workplace situation and your expectations of them, including any specific matters related to business continuity.
Give them updates even if they are not required to be at work so that they know what is going on. Use texts and social media where possible to minimise overload of the telecommunications network.
Remember staff may be under additional stress, provide them with support and help and show your concern. This could include access to an employee assistance programme for counselling, having a team debrief, daily blog or email. Remember, the first thing to do is to look at the IEA or policy, to discuss the situation with the employee and then come to an agreement.
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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