EMPLOYMENT LAW JACK RAINBOW
Managing Omicron While we have been navigating COVID-19 effectively for the past two years, we are about to enter uncharted territory as the new variant Omicron takes hold. Jack Rainbow, Solicitor at Dundas Street Lawyers, examines the serious workforce challenges and business continuity issues we face as this variant arrives. This article was correct at the time of writing. We appreciate the employment landscape is rapidly changing, and we encourage readers to always seek the latest advice from official government websites.
What is the state of play in New Zealand? Daily case numbers for COVID-19 are the highest we have seen since the pandemic began, and are still rising.
As part of its plan to manage the outbreak, the government currently requires anyone who returns a positive COVID-19 test or is considered a ‘close household contact’ to enter self-isolation. The isolation period for positive cases who are fully vaccinated for at least 10 days.
What does this mean for businesses? Given the predicted spread of Omicron, these isolation 22
HUMAN RESOURCES
AUTUMN 2022
requirements may result in large amounts of absenteeism: potentially in the tens of thousands. Workers may be required to remain away from the workplace for lengthy periods. The resulting staffing shortfall could hit businesses hard, particularly if several employees are identified as close household contacts at the same time. Against the backdrop of a tight labour market and record low unemployment, workforce shortages may affect employers across all sectors.
What is happening overseas?
New Zealand is in a uniquely fortunate position because it has mostly controlled the virus for the better part of two years, which has meant we can observe and learn from what is happening in other countries that have not been so lucky. The outbreak of the Omicron variant in the United Kingdom has reportedly put significant strain on businesses, particularly public services, such as the National Health Service, and education workforce. Closer to home, Australian businesses have been grappling with mass absenteeism as the virus spreads through the country. Woolworths Group, Australia’s largest supermarket operator, has reported that 10 per cent of its instore staff have been absent from work due to COVID-19, while in its
distribution centres, the number has climbed to 20 per cent.
What is the obligation regarding wages? The answer to this is not straightforward, and several scenarios could play out.
The general legal principle relating to payment obligations is that where an employee is ‘ready, willing and able’ to work, they are entitled to be paid. This principle was tested during the 2020 and 2021 Alert-level lockdowns, where some employers did not pay employees on the basis that the employees were not ready, willing and able to work because they were confined to their homes during lockdown. When this approach was challenged, the Employment Relations Authority found that there was a continued obligation to pay employees wages during this time, on the basis they were available to work, but it was the employer who was unable to provide them with work.
What does that mean for isolating employees?
Whether self-isolating employees will continue to be paid depends firstly on whether they can continue to work while in self-isolation. Where an employee is able to work from home they should be treated no differently than if they were present at work.
