Many of you will have seen media reports about the reasonably quick spread of coronavirus to different parts of the world. While (at the time of writing) there are no confirmed New Zealand cases, the Ministry of Health has advised that the chance of a case being imported into New Zealand is high (although the risk of an outbreak here is low). Information from the Ministry of Health can be found here.
Now is a good time to make sure you understand your options and obligations as an employer, should cases be confirmed in New Zealand.
Should things escalate, you may consider whether it is prudent to keep particular employees at higher risk away from the workplace in order to keep employees and others in your workplace safe from infection. The Ministry of Health has indicated that coronavirus has a 14 day incubation period. As a result, employees considered to be higher risk could include:
- someone with symptoms (Ministry of Health guidance can be found here);
- someone exposed to someone with symptoms; or
- someone who has travelled to Wuhan, China or other areas with sustained outbreaks within 14 days.
The most straightforward way to manage this from a legal point of view is to get employees who meet any of the categories above to agree to work from home or to take sick leave (or other paid leave that does not come off their entitlements) for the incubation period. This can give rise to some uncertainty and assumes that you will have the opportunity to have this discussion with the relevant employee before they come on site. As a result, trying to reach agreement with the relevant employees may not be particularly practical and issuing a directive to the workforce may be a better option. This can give rise to some compliance issues.
First, obligations under legislation should be considered. The Holidays Act does not allow you to direct sick leave. The Health and Safety at Work Act does, however, contain an obligation on all workers to:
- take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of others; and
- comply (as far as the worker is reasonably able) with any reasonable instruction that is given by the employer to allow the employer to comply with the Health and Safety at Work Act.
While it will depend on the circumstances, a direction to an employee to work from home or take paid sick leave or discretionary special leave for a short period of time if they fall within the categories above would be a lawful and reasonable direction to give from a health and safety perspective.
Second, you will need to consider relevant employment agreements. If the agreement contains a provision that allows the employer to direct an employee to take sick leave, then the employer is entitled to do so in accordance with the agreement.
Finally, the Ministry of Health has advised anyone with a concern regarding coronavirus to contact Healthline at 0800 611 116 or a doctor. If you have any questions about the employment law implications of an outbreak of coronavirus, please feel free to get in touch with a member of the team.
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.