COVID-19: Answering your difficult employment questions

 

 

Employment New Zealand has issued information about employment rights and responsibilities to employers setting our answers to frequently asked questions. We thought this was useful information that you might find helpful.
Note: This information is meant to provide general assistance to businesses and workers. Should you require legal advice, please contact Stephens Lawyers.

As an employer, can I pay staff less than their normal wages during COVID-19?

Employment law still applies to all employment relationships, regardless of the circumstances that we find ourselves in, including different alert levels during COVID-19. This means you can only reduce employees’ wages if they agree to it, after a discussion in good faith.

As an employer, you need to keep paying your employees at all alert levels, whether they are continuing to work at their usual place of work or from home, or if they are not able to work because of alert levels.

Employees should be paid their wages as set out in their employment agreement. If an employee has an employment agreement with minimum hours but has been working for more than the minimum hours for some time, you need to calculate their pay according to the number of hours that they have been working, rather than the minimum hours in their employment agreement.

The Wage Subsidy can be used to help pay their wages. You can only reduce how much you pay your employees if the employee has agreed to receive lower pay. This means that if they don’t agree to it, you will need to pay their normal pay, even if this is higher than what you received from the Wage Subsidy.

If you have money left over from the Wage Subsidy, for example, if an employee no longer works for you, you can use their remaining subsidy to pay other affected employees. If there are no other employees to use the subsidy for, then the remainder must be paid back.

If your employees cannot work normally and your business is struggling to meet its costs, the best thing you can do is to talk to your employees in good faith, explain to them your business’ financial situation and talk about what options are available to you and them, and agree to any changes. If your business has unionised employees, make sure that you involve the union in discussions relating to any changes.

There are other financial support schemes available to help you pay wages during this time. For example, the Leave Support Scheme can help you pay employees who have to self-isolate, even if you don’t qualify for the wage subsidy.

For further information about applying for the Wage Subsidy, visit the Work and Income website if you have questions relating to the wage subsidies, including how much you get, what the criteria is and how to apply. See Wage Subsidy.

 

Can I make my employees take annual leave or sick leave to help complement their wages?

At each alert level, employers and employees should first discuss whether the employee can work normally, how much work is available, and how to work safely at home or at their usual place of work.

During any alert levels, employers cannot make employees take:

  • sick leave, if the employee is not sick,
  • advanced annual leave,
  • annual leave, without giving at least 14 days’ notice (unless the employee agrees to take annual leave, after a discussion in good faith).

If an employee can’t come to work because they have been told to self-isolate by the National Contact Tracing process or by a Health official, and they can’t work from home, the Leave Support Scheme is available to help pay their wages.

For more information, see Leave Support Scheme and Leave & Pay During COVID-19.

 

Can I ask my workers to pay for their own masks during COVID-19?

You are responsible for your workers’ health and safety at work. You must provide all appropriate personal protective equipment (PPE), and make sure they use, wear and maintain the required PPE. This includes face coverings when required to do so under COVID-19 rules.

Remember, face coverings required by COVID-19 rules and PPE required by health and safety at work law are different.

You cannot pass on the cost of providing PPE (in full or part) to the worker. You cannot make the worker provide their own PPE as a condition of employment.

For more information, see PPE Guide for Businesses and Contact Record Rule & Face Coverings.

 

Can I require that my workers get vaccinated for COVID-19?

Businesses cannot make individuals be vaccinated. However, businesses can require that certain work must only be done by vaccinated workers, where there is high risk of contracting and transmitting COVID-19 to others. The Government has also specified that certain work can only be performed by vaccinated workers.

For a business to decide that work is high risk and therefore needs vaccination for health and safety reasons, the business must first assess their COVID-19 exposure risk. This applies to work done by all workers, whether employees or independent contractors.

The COVID-19 Public Health Response (Vaccinations) Order 2021 provides details of which work the Government has specified can only be performed by vaccinated workers.

For further information, see COVID-19 Vaccination & Employment.

Recent Posts

Government announces COVID-19 workplace vaccination legislation

Workplace photo

The Government has announced its intention to introduce new legislation to guide decisions on what work needs vaccination.

To align with the recently announced COVID-19 Protection Framework, the Government will mandate vaccinations for workers at businesses where customers need to show COVID-19 Vaccination Certificates, such as hospitality and close-contact businesses. The Government is continuing to work with business and unions on when this mandate will come into effect, which will likely be by the end of November.

For businesses where a Government vaccine mandate is not in place, the law will include a risk assessment process for employers to follow when deciding whether they can require vaccination for different types of work. This will cover factors like who workers interact with during their work days and how close that contact is, as well as ensuring our critical infrastructure and lifeline utilities can continue even if there has been exposure to COVID-19 in the workplace. This risk assessment will build on guidance already provided by WorkSafe.

How to decide what work requires a vaccinated employee – WorkSafe (external link)

The legislation will also include provisions for paid time off for employees to get vaccinated, helping raise workplace vaccination rates.

If an employee chooses not to get vaccinated for work that requires it, employment law will still apply. Employees and employers must continue to deal in good faith. Employers must still consider all reasonable alternatives, such as finding other work within the business that does not require vaccination.

The law change will introduce four weeks’ paid notice for any employee who has their job terminated because they are not vaccinated, and whose job requires it.

The legislation is expected to come into effect in December and further guidance will be published before then.

While the proposed legislation is not yet in effect, you can start assessing your workplace and vaccination requirement options using the guidance provided by WorkSafe. Just like with health and safety assessments, employers will have to consult workers and their representatives when using this risk assessment process.

Vaccines and the workplace

This information has been sourced from the Employment New Zealand website:
www.employment.govt.nz

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