Practical changes as a result of COVID-19

Anne Wilson, partner at Anthony Harper Lawyers, outlines how COVID-19 has changed the way we work and shares what changes, she believes, are here to stay.

It is clear that COVID-19 has changed the way we work and these changes are likely to endure. The pandemic has accelerated a shift in working practices by forcing a large sector of employers to allow employees to work from home and more flexibly than they have ever worked before.

In doing so, employers have had to place a high degree of trust in their employees, which in turn has often resulted in higher productivity and, for some, the ability to continue operating their businesses throughout the pandemic.

As we move into a different phase of the pandemic, employers now have to consider to what extent they will require employees to return to the office and how they maintain the intangibles lost from a workforce physically separated from one another, such as workplace culture and communication.

In among this, as well as coping with a high degree of change, employers have had to grapple with vaccine mandates and, for non-mandated workplaces, introducing vaccine requirements, and will now need to consider the need for booster doses and testing regimes.

So, from the perspective of the law, how can we mitigate the effect of these changes on HR practices to best position organisations for the future?

Working from home

By far the most impactful change from the pandemic has been the need for employees to work from home for extended periods. The ‘working from home’ revolution was anticipated to occur much earlier than 2020. In July 2008, the Employment Relations (Flexible Working Arrangements) Amendment Act came into force, giving employees a statutory right to request a variation of their working arrangements, including hours, days or work location. Under the legislation, employers have to respond to such a request within one month of receiving it but can refuse the request on a variety of grounds.

The purpose of the amendments was to encourage employers to consider flexible working arrangements, but, because employers could easily refuse a request, it didn’t result in any significant change in working practices. Many employers were stuck in the long-held ‘bums on seats’ culture and had no real need or incentive to divert from that. Flexible working and working from home arrangements remained the exception rather than the rule, other than for early adopters, such as the tech industries.

Burnout is much more likely when work is so accessible from home and employees are constantly tethered to their smart devices, resulting in blurred boundaries between work and home.

The pandemic rapidly changed that. Employers were suddenly forced to adopt working from home and flexible arrangements across their entire workforces, including accommodating employees who had families at home during periods of lockdown. In addition, the pandemic coincided with improvements in technology that made working from home easier, such as fibre internet and video conferencing.

The need for employees to work from home during lockdowns and the tight labour market have put employees firmly in the driver’s seat of how, when and where they want to work. Work–life balance and wellbeing have become the focus, and the live-to-work mentality no longer dominates.

The speed and broadness of the changes prevented most employers from documenting the new working arrangements in writing. Uncertainty around how the pandemic would continue to affect us has also prevented employers from having a clear picture of what they will require from employees in future.

In this new phase of the pandemic, employers are left considering:

• to what extent they will require employees to return to the office

• to what extent they will allow employees to choose for themselves how, when and where they work.

This makes now a perfect time for HR practitioners to focus on the organisation’s ground rules and policies for the future. A change to an employee’s hours, days or location of work, whether on a permanent or temporary basis, is a variation of their terms and conditions of employment. The Employment Relations Act 2000 requires that any variation to an individual employment agreement be recorded in writing. Employees should be advised of their right to seek independent advice before signing such a variation.

In a world that is changing so quickly, these rudimentary steps are often overlooked or may seem inappropriate. To manage this, employers can include broad provisions in their employment agreements and have policies that guide decisions regarding working from home and flexibility. To future proof an organisation, the individual employment agreement and applicable policies should retain the employer’s ability to change these arrangements when needed.

Communication and culture

Another crucial change has been the impact of working from home arrangements on how an organisation communicates with its people and the follow-on effect on its culture. Those impromptu conversations around the coffee machine, which build relationships in the workplace resulting in collaboration and innovation, can be lost. Less experienced employees may no longer have as much of an opportunity to learn from osmosis and leaders have less ability to lead by example or seize informal opportunities for performance coaching.

HR practitioners will need to consider:

• scheduling more time for casual interactions with staff, which may include online catch ups or more social or outdoor activities that are unlikely to be disrupted by the pandemic

• putting in place regular mentoring arrangements

• establishing innovative ways to create opportunities for casual interaction between leaders and staff members.

In doing so, they should also consider what additional steps the organisation should implement to continue to comply with its legislative duty of good faith. This duty requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative.

Health, safety and wellbeing

Working from home arrangements can make it more difficult for employers to notice when employees are struggling with workplace stress or with their wellbeing, because interactions are planned, and employers have less ‘visibility’ regarding how an employee is working.

At the same time, burnout is much more likely when work is so accessible from home and employees are constantly tethered to their smart devices, resulting in blurred boundaries between work and home.

HR practitioners will need to ensure that health and safety policies and practices are updated to take into account the change in workplace practices that have occurred due to the pandemic. They should consider the new hazards that arise from those changes to ensure the organisation meets its obligations under the Health and Safety at Work Act 2015.

• regularly targeted wellbeing initiatives that can be accessed from home

• setting expectations of boundaries on working hours

• allowing employees to ‘unplug’ regularly.

Vaccination mandates and boosters

As if grappling with the above changes wasn’t enough, HR practitioners have had to implement vaccine mandates. In workplaces that aren’t mandated, practitioners should consider whether each role in their workplace must be performed by a vaccinated worker.

This involves:

• conducting a health and safety risk analysis of each role and consulting with staff regarding the assessment

• drafting and consulting with staff regarding a vaccination policy

• implementing the policy.

Where employees are required to be vaccinated, recent amendments to the Employment Relations Act 2000 require employers to give employees written notice of the date by which they must be vaccinated and paid time off to do so.

The ‘working from home’ revolution was anticipated to occur much earlier than 2020, but, because employers could easily refuse a request, it didn’t result in any significant change in working practices [before 2020].

If an employee is not vaccinated, an employer must ensure that they consult with the employee about alternatives that would not lead to termination and ensure these have been exhausted before giving the employee four weeks’ paid notice of termination (during which time they may choose to be vaccinated and return to work provided this doesn’t unreasonably disrupt the employer’s business).

There has yet to be any significant case law on these obligations, which is leaving employers uncertain about whether their decisions to terminate will be justified. However, employers should be guided by the fundamental principles in employment law to determine the correct outcome, including the principles of natural justice and the test for justification that requires any decision to terminate to be one that a fair and reasonable employer could have made in all the circumstances.

Finally, HR practitioners will need to review their organisation’s health and safety risk assessments and policies to determine their position on vaccine boosters and testing regimes. They will need to consult staff before implementing any new requirements. Boosters are not required for a person to hold a vaccine pass, so employers will also need to consider how they will collect evidence of booster vaccinations while complying with obligations under the Privacy Act 2020.

The changes to the way we work due to the COVID-19 pandemic and the implications of those changes are broad. However, HR practitioners can, and should, consider several practical steps to address those changes and prepare their organisations for the future.

A pandemic is the perfect time to:

• focus on the organisation’s ground rules and policies

• confirm in writing any changes to an employee’s hours, days or location of work, whether on a permanent or temporary basis

• review individual employment agreements and applicable policies, to ensure employers have the ability to change working arrangements when needed

• schedule more time for casual interactions with staff

• put in place regular mentoring arrangements

• consider innovative ways to create opportunities for casual interaction between leaders and staff

• ensure health and safety policies and practices are updated to accommodate the change in workplace practices that have occurred due to the COVID-19 pandemic

• regularly target wellbeing initiatives that can be accessed from home

• set expectations of boundaries on working hours

• allow employees to ‘unplug’ regularly

• review health and safety risk assessments and policies to determine the position on vaccine boosters and testing regimes.

Anne Wilson is a Partner at Anthony Harper Lawyers leading its Christchurch employment practice. Thanks to her experience working in-house for Vodafone, she brings clients a unique perspective. She advises employers on various employment matters, including personal grievances, disciplinary investigations, restructuring, performance management, medical incapacity and the Holidays Act 2003. Most recently, Anne has advised employers regarding issues arising from the COVID-19 pandemic, including vaccine requirements and testing regimes. Anne provides solutions that consider the multi-dimensional aspects of the employment relationship and enjoys helping clients implement leading-edge employment initiatives.