As many of you are now well aware, there has been a novel strand of the Coronavirus identified in humans for the first time. The new strand, known as (2019-nCoV) (the Coronavirus) was first reported in Wuhan, China on 31 December 2019, but has rapidly spread throughout the world, causing the World Health Organisation (WHO) to declare a global emergency.
Despite our Government's best effort's, New Zealand still needs to prepare for the possibility of an outbreak. Employers will need to determine how they will deal with a number of situations, such as:
- an employer's obligations in relation to Health and Safety;
- the ability to require employees to stay home;
- an employee's ability to refuse to attend work; and
- whether an employer is obliged to provide further paid sick leave in the event that an employee has exhausted their sick leave entitlements.
Health and safety
The Health and Safety at Work Act 2015 requires that a person conducting business or undertaking (PCBU) ensures so far as reasonably practicable, the health and safety of workers. In doing so, employers must identify and manage hazards, take reasonable steps to eliminate such hazards, or isolate them if elimination is not possible.
In a Coronavirus outbreak, the reasonable steps an employer will be required to take will vary depending on the type of workplace. The risk of infection will be greater in some workplaces (such as those in the service industry) than it will be in others. In general, providing hand sanitiser, tissues and encouraging respiratory hygiene and safe food practices, are good initial steps to follow to minimise the risk of the Coronavirus spreading.
Employers also need to consider what steps they may need to take to ensure employees have the option to work from home. For example, this may include ensuring employees have access to laptops and/or remote logins and in turn preparing for additional support to IT services.
If an employee develops symptoms of the Coronavirus, an employer will have an obligation to take reasonable steps in order to protect the health and safety of its other employees, so far as reasonable practical. Such steps will depend on what policies and employment agreements are in place. Employers may want to consider reviewing or implementing a pandemic planning policy.
Sick leave entitlements
An employee who takes sick leave is entitled to be paid for 5 days after 6 months of continuous employment and can also opt to take annual leave as sick leave when sick leave is exhausted. In the event that an employee has run out of sick or annual leave but considers themselves too unwell to report to work, or needs to stay at home to look after children who are either unwell or because schools have closed, the employer generally does not have an obligation to pay that employee for sick leave.
Under the Health and Safety in Employment Act 2015, employees are entitled to refuse to work if they have reasonable grounds to believe that reporting for work may expose them to serious harm. This creates implications for employers paying out extended periods of sick leave.
If New Zealand faces an outbreak of the Coronavirus and employers have to deal with half of their employees off on sick leave, employers may be able to rely on a "force majeure" clause, depending on how their employment agreements have been drafted. If drafted correctly, a force majeure clause will remove the obligation for an employer to pay sick leave to employees who are required to stay at home, in the event of unforeseen circumstances beyond the control of the employee or employer.
Force majeure clauses became more common after the Christchurch earthquakes, but the enforceability of these clauses are still unclear. Some businesses have recently invoked force majeure clauses in relation to supply contracts in China but have already been met with challenges on enforceability. Enforceability will depend on the circumstances of each case, taking into account the severity of the outbreak, risk of infection and the practicality of business as usual. In other words, a company will not be able to rely on a force majeure clause on the basis that the running of the business has become more costly and/or time consuming. An employer will need to ensure that business as usual is effectively impossible. Therefore, companies who can work remotely from home would not be able to rely on a force majeure clause.
In any case, whether or not the Coronavirus reaches New Zealand, employers should take this opportunity to address the issues described above, as New Zealand has dealt with similar scenarios in the past, with the likes of swine flu, bird flu and measles.
Employers should also be ready to respond to a potential increase in racist or xenophobic comments in the workplace. It is extremely unfortunate that there has been reports of racist, xenophobic, discrimination and bullying towards Chinese people throughout New Zealand. Employers need to have a zero tolerance approach towards such behaviour.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.