From 11.59pm on Wednesday 25th March 2020, the only businesses/jobs open in New Zealand are those that are considered “essential” as they are either services for health, safety, welfare or essential infrastructure.
The definition of “essential” businesses and the updated list can be found here – however, these are some important questions that employers have been asking:
As an Essential Service, what if one of my employees refuses to come to work due to their concerns regarding the risk of COVID-19 and wants to go into lock down?
As your business has been defined by the Government as an essential service, your business needs to continue to operate and provide those essential services to support our community, including your employees’ families.
All employees need to continue attending the workplace and undertaking their duties. The only exceptions to this are employees who are sick, employees who are required to stay at home under the government requirements, such as employees over the age of 70 or employees who are immuno-compromised or employees who qualify for self-isolation leave.
If an employee simply fails to attend work, then their absence should be treated as an unauthorised absence. Every reasonable effort should be made to contact the employee to understand why they have not attended work. If you are unable to contact the employee, it may be treated as an abandonment of employment.
If you have determined the absent employee has not abandoned their employment but has just decided not to attend work, there is no requirement to pay the employee during this time. The employer should address non-attendance in its normal manner which may include commencing a disciplinary process, however while remembering good faith obligations to be fair and reasonable given the circumstances.
What if my worker is not sick but lives in a household that has others who have been required to self-isolate due to complying with the Ministry of Health guidelines for COVID-19 (over 70, immuno-compromised or caring for dependants who are required to self-isolate)? Do they have to come into work?
When an employee is living in the same household as a person who fits this category but is not dependant on them for care, then they are required to come to work unless you agree with them otherwise.
Where an employee is required to care for a dependant person who is required to self-isolate, including children under the age of 14 who do not have any other person able to care for them, they will be eligible for COVID-19 leave and the leave payment provided for by the government. You may agree to top up their payment through the use of sick leave, annual leave or discretionary paid leave but there is no requirement to do so.
If an employee still doesn’t want to come into work because they are concerned about harming their family and are uncomfortable attending the workplace, then you should consider all available options, such as:
- Work from home (if this is practical): where an employee is willing and able to work from home, then employers should consider allowing the employee to work from home.
- Using leave: with the employee’s agreement, you can use annual leave entitlements or in advance of entitlements. You can also consider providing discretionary special leave which may be paid/unpaid at any agreed rate.
- Require the employee to attend work: as above, you can require your employee to attend work, otherwise you can address it as an unauthorised absence if they do not attend.
For more information and updates about essential businesses, go to Covid19.govt.nz or get in touch if you need advice.
Written by Adrian Tocker.
