Natural disasters: what do employers need to know?

Thursday 16 February, 2023

The impact of Cyclone Gabrielle and the late January flooding has wreaked havoc on much of the North Island. Many businesses have had to close, due to damaged premises. Flooding and damage to roads means that many businesses cannot get supplies or have limited access for customers and staff.

Employers, especially in Auckland and the East Coast, are facing difficult decisions about whether and how they can operate until the clean-up is complete, particularly for businesses which rely on in-person customers. Employees may also be facing significant disruption, with many schools and daycares closed. Many employers will be wondering whether they need to pay staff if the business is unable to operate.

Ready, willing, and able?

Employment Relations Authority decisions from the COVID-19 lockdowns have made it clear that if an employee is ready, willing and able to work, but their employer has temporarily closed the business, the employer must continue to pay them, even if the employee is not actually working. The situation is more complicated where the worker is ready and willing to work but may not be able to, either because road closures or flooding prevent them getting to work, or because they suddenly have to take on childcare responsibilities.

The easy solution would be for the employee to take annual leave, but they may not want to or may not have any annual leave remaining following the Christmas period. 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.

Working from home?

Like many employment decisions, whether the employer must continue to pay the employee 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 or other responsibilities. 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 or having to undertake flood clean-up work. However, any changes to hours or conditions of work must be made in consultation with the employee, not imposed unilaterally by the employer.

Childcare issues?

If childcare responsibilities are the issue, the employer could consider allowing the employee to bring their child to work with them, especially for older children who are not old enough to legally remain at home. However, the employer would have to look at how this affects health and safety in the workplace.

Unable to work?

If the employee is unable to work due to closed roads or 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, employers 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.

Is it safe to work?

As a PCBU (person conducting a business or undertaking), employers have duties under the Health and Safety at Work Act 2015. This includes ensuring so far as reasonably practicable that the workplace, and the means of entering and exiting the workplace, are without risks to health and safety.

If the employer has any concerns about the safety of the workplace, they should err on the side of caution and not require workers to attend work until they are satisfied it is safe to do so. This may require obtaining expert advice (e.g. from an engineer). If the employer uses leased premises, they should discuss any concerns with the landlord and check the terms of their lease agreement to ascertain who is responsible for any repairs.