Once again New Zealand is at Alert Level 4. We have been here before, in many ways it feels like we are returning to “business as usual”. However, it is not any easier this time around.
There is the return of the uncertainty around balancing work and family commitments, looking after our physical and mental health. For those able to work from home and those operating business there are added pressures.
From an employment law perspective, we still don’t have all the answers, particularly in the area of wage and salary obligations during a nationwide lockdown. The leading cases on this issue, Raggett v Eastern Bays Hospice Trust t/a Dove Hospice and Gate Gourmet New Zealand Ltd v Sandhu are currently on appeal.
On the other hand, there are some things we can be certain about – that employment law itself has not been suspended, and that the support networks established when the nation was first locked down remain accessible.
How do I identify my support network?
There are a range of resources available for employers and employees wanting to find out more about their rights and obligations during a nationwide lockdown.
Additional resources for all can be found at the bottom of this article.
Can my organisation operate at Level 4?
Only if your business or services is listed in and able to operate safely under Schedule 2 of the COVID-19 Public Health Response (Alert Level Requirements) Order (No 9) 2021, which was updated yesterday.
Any employer continuing to operate during Alert Level 4 (whether remotely or otherwise) must continue to fulfil their health and safety obligations and ensure they put appropriate measures in place that eliminate or minimise harm so far as reasonably practicable.
What if I have to make changes to my business?
If you find you are having to make decisions which impact on staff pay, hours or duties we recommend consulting with your support network in the first instance. Once you have talked through these possible changes with a trusted advisor, it is time to consult with affected employees. If you are looking to change a term or condition of their employment, you will need to get their agreement before doing so. Specialist employment lawyers can help you design an appropriate consultation process.
If I can’t operate at all, or only at reduced levels, do I have to pay my staff?
As indicated above, this is a live issue the appellate courts’ guidance remains to be determined.
On one side, there is an argument that employees who are not “ready, willing and able” to work should not be paid (at all). On the other (and as the law currently stands), the argument is employees are entitled to be paid in accordance with their employment agreements (or as otherwise agreed), even if they cannot work due to circumstances outside their control.
Putting these positions to one side, the question to be asked above all is whether an employer’s actions were what a “fair and reasonable employer could have done in the circumstances”. As the answer to this question will vary depending on the situation, it is important to check in with your specialist employment lawyer to assess the risks unique to your people and your business.
What financial support is available to my organisation?
The Government has put in place a number of initiatives to assist with employers (including self-employed people) with paying staff and meeting other expenses. We recommend exploring these options before making any decisions which may affect employees.
Depending on the situation, you may be eligible to receive:
- the Wage Subsidy – applications open from 9am on 20 August 2021 for two weeks;
- the one-off Resurgence Support Payment (this can be accessed at the same time as the Wage Subsidy, provided you meet the eligibility criteria);
- the Leave Support Scheme;
- the Short-Term Absence Payment;
- for organisations with fewer than 50 employees, the Small Business Cashflow (Loan) Scheme; or
- assistance with business debt hibernation, which is available to a number of different organisations including companies,
trusts, incorporated societies and public sector entities.
The team at Black Door Law is here as part of your support network. For tailored advice to assist with making the right decisions for your team contact us.
If you need assistance or emotional support to this time, you may find these resources useful:
Lifeline 24/7 Helpline |0800 LIFELINE (0800 54 33 54) | free text HELP (4357)
Mental Health Foundation |free call or text 1737