Employers' obligations during and after the COVID-19 pandemic

Returning to work postCOVID-19 lockdown requires careful management of health and safety risks and legal obligations. Julia Shallcrass, employment lawyer and director at HR training company KiwiBoss, talks us through our requirements, as well as some of the opportunities arising for workers and employers.

Employers must ensure the safety of their workers by informing them about their health and safety obligations and following their COVID-19 safety management plans. Employers should plan for sick leave entitlements and seek financial support under the government’s COVID-19 Leave Support Scheme.

Now is the time to consider how to support staff through organisational change, and to apply any learnings from lockdown relating to working from home arrangements.

Safety first

Health and safety at work is paramount, and employers must ensure the health and safety of all workers during the COVID-19 pandemic. Under the Health and Safety at Work Act 2015, employers must protect their workers and others at work from the risk of infection, so far as is reasonably practicable.

Employers should prepare for the safe return of staff to work under Alert Level 2 with a COVID-19 safety management plan. This should set out how the employer will operate safely at work. Inform staff and stakeholders about the plan and expectations required of them before they return to work.

“The key to success is ensuring everyone is aware of the safety management plan,” says Matt Jones of Advanced Safety. “Tell everyone about do’s and don’ts – and remind workers of their legal duties under legislation.”

Be mindful that staff will be tired from riding an emotional roller-coaster. Matt recommends, “keeping tasks brief, conference calls short and not too much decision-making during the first few days returning to work”.

Matt advises employers to keep their COVID-19 Safety Management Plan simple. “Employers can add COVID-19 to existing hazard and risk registers and share these with their team. List controls on your register from reliable sources such as the Ministry of Health, Unite Against COVID-19, and WorkSafe NZ.”

Employers should minimise the risk of passing on the COVID-19 virus at work through controls, such as:

• supporting people with flulike symptoms or exposure to COVID-19 to self-isolate

• ensuring physical distancing in accordance with government guidelines (1 metre during Alert Level 2, where practicable). Depending on your workplace, you may use smaller rotations of staff and stagger meal breaks, or change hours to allow for adequate physical distancing

• disinfecting surfaces, including common touchpoints like door handles and light switches. Shared equipment must be wiped and cleaned at the beginning and end of each shift

• maintaining good hygiene, particularly hand hygiene and good cough and sneeze etiquette

• providing appropriate resources to minimise the risk of spreading infection, such as hand sanitisers, face masks, disposable gloves and other protective equipment for staff, such as healthcare workers, who might encountee

• keeping records (trace rr the diseasecording) of who and when people have visited and attended the workplace, to facilitate contact tracing.

For more information on health and safety, employers should review government guidelines, such as those from WorkSafe NZ: https://worksafe.govt.nz/ managing-health-and-safety/ novel-coronavirus-covid/ covid-19-safety-plan-what-youneed-to-think-about/

The Ministry of Health guidelines require self-isolation for 14 days upon risk of exposure to COVID-19.

Employees who are absent from work due to exposure to the virus may be able to work from home. Otherwise, both parties should discuss and agree on whether the period of absence is special paid leave, annual leave or unpaid leave.

The key to success is ensuring everyone is aware of the safety management plan.

Sick leave support

Employers can require staff infected with COVID-19 to take sick leave and return to work upon medical clearance.

Under the Holidays Act 2003, employees are entitled to a minimum of five days sick leave per entitlement year.

Staff without any sick leave entitlement may agree to take annual leave or unpaid leave. Employers can ask workers who have been exposed to the virus to stay away from work, to avoid putting others at risk of infection.

The Ministry of Health guidelines require self-isolation for 14 days upon risk of exposure to COVID-19.

Employers who are absent from work due to exposure to the virus may be able to work from home. Otherwise, both parties should discuss and agree on whether the period of absence is special paid leave, annual leave or unpaid leave.

• is at higher risk if they get COVID-19, and Ministry of Health guidelines recommend they stay at home while public health restrictions are in place. Employees at higher risk include those with immune-compromised conditions, moderate or severe

Sick leave support Employers can require staff infected with COVID-19 to take sick leave and return to work upon medical clearance.

Under the Holidays Act 2003, employees are entitled to a minimum of five days sick leave per entitlement year. Staff without any sick leave entitlement may agree to take annual leave or unpaid leave.

Employers can ask workers who have been exposed to the virus to stay away from work, to avoid putting others at risk of infection, asthma, aged over 70, or pregnant (see Ministry of Health guidelines for more information)

• has come into contact with someone who has COVID-19 and must self-isolate for 14 days under Ministry of Health guidelines

• has tested positive for COVID-19 and is required to remain off work until cleared by a health professional

• shares a household with someone who is at higher risk if they get COVID-19, and the Ministry of Health recommends the employee also remains at home to reduce the risk to them.

Employers can apply through Work and Income for financial support under the COVID-19 Leave Support Scheme to pay employees, provided they meet the criteria. The scheme covers a four-week period at the subsidy rate of $585.80 for full-time workers (who worked 20 hours or more per week before COVID-19); and up to $350 per week for any part-time employees.

For more information, see the Ministry of Social Development website: https://www. workandincome.govt.nz/ covid-19/leave-support-scheme/ index.html

Restructuring and redundancies

Many businesses struggling financially due to the impact of COVID-19 are considering restructuring proposals that could lead to redundancies.

Employers must have genuine reasons to justify their restructuring proposal, such as a significant downturn in sales or revenue, or staff being surplus to operational requirements.

Before making redundancies, consider any alternatives to the restructuring proposal. Discuss options and eligibility under the COVID-19 Economic Response Package, such as wage subsidies, tax losses, and loans, with a Chamber of Commerce, lawyer, financial adviser or bank.

Even businesses facing unprecedented challenges must follow a fair and reasonable restructuring process. Provide staff with all relevant information on the restructuring proposal and a reasonable opportunity to give feedback before making your decision.

During restructuring, provide support such as Employee Assistance Programmes and be thoughtful in your communication with affected staff.

“Stress makes it hard for people to absorb and remember information,” say Elizabeth McNaughton and Jolie Wills (co-founders of Hummingly). “Follow up any conversations in writing so people can absorb messages when and how they need to.”

“Try not to take reactions personally. People will feel grief and anger, and it will come out in many ways.”

Remember it will also be tough for the team members who remain after a restructure. “Have plans in place and tools available to support their wellbeing, resilience and performance,” say Elizabeth and

Jolie, who provide Doing Well cards for teams undergoing change.

Where an employer restructures business, and redeployment is not an option, staff are entitled to payment for the notice period of redundancy and any contractual redundancy compensation, in accordance with their employment agreements.

Employers who received wage subsidies must comply with requirements to retain staff during the wage subsidy period. Employers who applied for wage subsidies after 4pm on 27 March 2020 must retain staff for the duration of the wage subsidy, so may not end staff employment during this time. Similarly, if employers applied for the wage subsidy before 4pm on 27 March 2020, they must use their best efforts to retain staff during the wage subsidy period. Employers seeking funding under the Wage Subsidy Extension must retain their employees for the duration of the extended subsidy (until 1 September 2020).

Force majeure clauses

Employers may invoke force majeure clauses (also known as “business interruption” clauses) that are included in employment agreements. Force majeure clauses may provide for immediate termination of employment where there is a specified triggering event, such as an epidemic, pandemic or act of government.

Enforceability of a force majeure clause depends on the wording of the clause and business circumstances. An employer may be able to rely on a force majeure clause if running the business as usual is effectively impossible. It is unlikely that a business could rely on a force majeure clause where it loses profit but can otherwise continue trading as usual.

Pivotal changes for the workforce: working from home

One of the pivotal changes for the workforce that emerged during the COVID-19 lockdown is the ability to work from home. Employers are encouraged to continue alternative working arrangements, such as working from home, flexible leave, and shift-based working, where practicable during Alert Level 2. Now is the time to consider whether working from home could become a permanent arrangement for your staff, or for health reasons during COVID-19. Review working from home arrangements and how they affected your staff, clients and your business. Discuss how staff can work effectively from home on an ad hoc or ongoing basis.

Ask questions such as:

• How can we provide ongoing supervision for staff working from home?

• How will the employee engage in meetings once business is open?

• Can we service clients and customers if any of our staff are working from home?

Staff are likely to be more productive working from home at least one day per week, free from office distraction and interruptions. Flexible working arrangements such as hot-desking and working from home may reduce the need for office space and provide for physical distancing during Alert Level 2. Under Ministry of Health guidelines, working from home is an option for staff who are considered at higher risk if they get COVID-19.

While working from home generally improves productivity and job satisfaction, the COVID-19 lockdown proved a challenge for many employers and employees. Some staff struggled to juggle childcare and work during school closures and became fatigued with new technologies and the lack of social support.

Learnings during the lockdown on how to manage these challenges are useful for business continuity planning and situations that require staff to work from home.

Effective communication through technology use is important for overcoming challenges and engaging a productive workforce at home. Frequent communication through technology like Microsoft Office Teams, Google Hangouts and teleconferencing helped teams communicate during the lockdown. Social networking forums like Slack proved useful for staff to share ideas.

Clarify expectations by providing staff with access to a workplace policy and guidelines on working from home. Working from home policies should include expectations of employees; health and safety requirements; preferred channels of communication; who to contact for support; any payment expenses; and managing confidentiality, security and technology.

For more information, see Julia’s upcoming KiwiBoss half-day virtual courses through HRNZ:

Restructuring and Redundancy – 23 June

Effective HR Communication – 1 July

Effective Performance Management – 21 July

Julia Shallcrass is an employment lawyer who specialises in presenting on employment law and HR innovation. Julia upskills people managers and HR professionals on improving legal compliance, workplace culture and productivity.

As Director of KiwiBoss, Julia delivers in-house training to organisations in the public, private and not-for-profit sectors to help create better workplaces.

Julia is a facilitator for HRNZ PD courses, virtual courses and webinars.

Go to hrnz.org.nz/pd to see upcoming courses.

Julia is part of the KiwiBoss team that delivers public courses through HRNZ, and in partnership with Auldhouse, including live and virtual courses during COVID-19.

Julia@kiwiboss.co.nz www.kiwiboss. co.nz