Employers concerned about Covid sick leave, infection risks and random testing

Friday 14 January, 2022

Employers concerned about Covid infection risks, sick leave and business continuity as people return to work

As people return to work after the summer holidays, concerns are surfacing from employers about how to minimise Covid infection risk, manage sick leave and ensure business continuity in the event of a local outbreak.

A month on from the introduction of the Government’s Covid-19 Protection Framework, Tompkins Wake Senior Associate Karina McLuskie says employers’ focus is shifting from vaccination conversations to working through a myriad of ‘what ifs’ as employers prepare for the impact Covid-19 in the community could have on the workplace.

“We’re helping employers navigate their way through the complexity of this new employment law. It’s uncharted territory, yet employers can’t afford to get it wrong. Employers have largely worked their way through the development of vaccination policies, which was a huge piece of work for many. 

“Now they’re shifting focus to grappling with issues like Covid-19 sick leave policies, changing office configurations to minimise infection risks, implementing innovative shift patterns and introducing random rapid antigen testing.

“Employers are facing the reality that Covid-19 will become more commonplace in the community and that will flow on into the workforce. When they open their minds to that reality, there are a lot of ‘what ifs’ that must be planned for and risks mitigated,” says McLuskie.

McLuskie and her colleague Associate Fiona Dalziel are part of a Tompkins Wake specialist employment team who has advised an approximated 50 employers – both large and small – over the past few months to help them operate within the law while navigating these new employment issues.

Dalziel says planning for employee leave is a critical area where employers are seeking guidance.

“Employers are asking questions around leave, such as: What if an employee has extended leave due to Covid-19? How do we handle leave if an employee is required to isolate? Is the employer obligated to keep paying them even if they are perfectly well, but in a job where they can’t work from home? How do we continue operating if we have a case at work and other staff are contacts?

“It’s important for employers to work through the answers to these questions, so they have certainty for themselves in order to plan resourcing and budgets in light of increased risks. 

“Understanding the law with respect to leave issues also allows employers to give staff certainty before situations arise. We saw a number of employers doing this work pre-Christmas, before Covid-19 becomes more commonplace in all our workforces this year,” says Dalziel.

McLuskie says some employers’ leave questions are easier to answer than others. 

“If an employee is sick with Covid-19, you treat it as you would any other sick leave. Employers just need to keep in mind that some people who contract the virus may take more than a few weeks to recover, which creates a secondary challenge of staff resourcing,” she says.

As Covid-19 becomes more widespread in the community, Dalziel says employers are wondering how to handle leave when staff are deemed a close contact and mandated to isolate.

“If an employee who is deemed a close contact of a Covid-19 case and directed by the Ministry of Health to self-isolate, is ready and willing but unable to work at home, the employer is obligated to continue paying the employee. 

“While there are government subsidies employers can access in this case, there may still be a financial impact for employers as they top up the subsidy. Plus, they’ll have the added cost of disruption when people are suddenly taken out of the workforce.  

“Working through these sorts of leave issues is going to be tough for some employers, especially small to medium enterprises, but unfortunately it’s likely to be the new reality for many in 2022,” says Dalziel.

McLuskie says government guidance has recently changed for people deemed close contacts and waiting for Covid-19 test results, and could change again as the situation develops. This can make it difficult for employers to keep up.

“We are continuously checking for changes in the government guidance to ensure that our advice remains current,” says Dalziel.

Dalziel says she’s worked with employers who are being creative to minimise potential Covid-19 impacts on their team and the business.

“Some employers are implementing ‘bubble shifts’, which is a great way to reduce risk in the workplace if you are a manufacturing site, for instance. If one bubble is impacted, there are others unaffected, and work can continue. Another simple idea is encouraging teams to have meetings outside, when possible, where ventilation is much better. We’ve also helped companies implement temperature-check policies for employees and visitors,” says Dalziel.

Some employers are also gearing up to implement randomised rapid antigen testing in their workforces this year. McLuskie says this solution is likely to be popular amongst businesses that do not have a blanket vaccination mandate for staff.

“Our team is advising clients around what can and can’t be done to bring in randomised rapid antigen testing as this tool becomes more widely available. The process around this is similar to introducing drug testing to the workplace,” says McLuskie.

McLuskie and Dalziel agree that employers should “expect to consult every time.”

“As a collective, New Zealand employers are embarking on a new journey,” says McLuskie. “They need to tread carefully and ensure employee consultation and good communication is built into every step.”