COVID-19 turmoil for employers again

Wednesday 26 August, 2020

As Auckland shifts to Alert Level 3, and the rest of the country returns to Level 2, everyone in New Zealand is anxiously watching to see whether, and how quickly, this latest outbreak can be brought under control. Employers, especially in Auckland, will once again be faced with difficult decisions about whether and how they can continue to operate under COVID-19 restrictions. This is especially so for businesses such as hospitality, which rely on customers being able to enter their establishments.

Thousands of other Auckland businesses and their employees will be facing significant disruption as schools and daycares close for all but the children of essential workers, but many workplaces remain open. It’s clear from the recent Employment Relations Authority decisions relating to the COVID-19 lockdown that if an employee is ready, willing and able to work, but for the COVID-19 lockdown or an employer’s decision to temporarily close their business, the employer must continue to pay them, even if they are not actually working.

The situation is more complicated where the worker is ready and willing to work but may not be able to because they suddenly have to take on childcare responsibilities. The easy solution would be for the employee to take annual leave to care for their children, as they would during school holidays. However, the employee may not want to take annual leave, or may not have any annual leave remaining following the COVID-19 lockdown earlier this year. The employer could theoretically direct the employee to take annual leave, but an employer cannot force an employee to take annual leave unless they have first tried to reach agreement with the employee and then given 14 days’ notice.

Like many employment decisions, the answer depends on a number of factors, and is best resolved by open discussion between employer and employee. The employer should make reasonable efforts to assist the employee. If working from home is possible, the employee may be able to continue working remotely while balancing childcare responsibilities, as so many parents had to during lockdown. Or the employer and employee could agree that the employee will work reduced hours from home, so as not to overwhelm the employee, especially if they are caring for young children.

If working from home isn’t possible, both parties should look at what they can do to accommodate the employee’s childcare responsibilities. Options include altering start and finish times or hours of work so that the employee can share childcare with a partner or another family member. However, any changes to hours or conditions of work must be made in consultation with the employee, not imposed unilaterally by the employer. Another option is allowing the employee to bring their child to work with them, especially for children who are older, but not old enough to legally remain at home. However, the employer would have to look at how this affects health and safety and the ability to institute social distancing in the workplace.

If no accommodation is possible, and the employee is unable to work due to childcare responsibilities, then the employer may be justified in not paying the employee on the basis that they are not ready, willing and able to work. However, employees are strongly advised to seek legal advice before opting for this course of action, otherwise, they could find themselves facing personal grievances and significant fines in the Employment Relations Authority.

If you have any employment concerns arising from COVID-19, our experts below can help.