Covid 19 Alert Level 2: What Does It Mean For Employers And Employees?

8 May, 2020 | Rachael Chandra

When changes are made to the Covid 19 Alert levels, the majority of Employers and Employees will no doubt face new challenges in relation to returning to work.

For Employers, those challenges could include meeting the health and safety standards required for returning to work under a lower Alert Level, but where the risk of Covid -19 infections still exists.  It could also include dealing with on-going terms of employment for Employees if the lockdown as a result of Covid-19 has affected the Employer’s business so that changes/further changes are required in relation to Employees.

The following are useful sources of information for Employers and Employees as they contain relevant and up-to-date information about the rules and restrictions applicable to the different alert levels and guidance:

• Essential Services: https://covid19.govt.nz/businesses‐and‐employees/essential‐businesses/essential‐services/
• Alert Levels: https://covid19.govt.nz/assets/resources/tables/COVID‐19‐alert‐levels‐detailed.pdf
• Health.govt.nz
• WorkSafe website: Planning your RTW: https://worksafe.govt.nz/managing‐health‐and‐safety/novel‐coronavirus‐covid‐19/your‐covid‐19‐safety‐plan/
• Business New Zealand (specific guidance for businesses)
• govt.nz (employment law)

Employers who have specific questions about health and safety issues should contact Worksafe for guidance.

The employment related issues that are likely to arise for Employers are:

• Remuneration and hours of work for employees returning to work. For instance, is there enough work for all employees to return on a full-time basis, and whether terms and conditions of employment such as hours of work, rate of pay and duties need to be varied;
• Remuneration and hours of work for employees who are unable to return to work for whatever reason;
• Restructures and Redundancies: When can an employer start addressing issues of a restructure and possible redundancies, and the process relating to that.
• Can employees be asked to take annual leave and what is an employer permitted to do if an employee refuses to take annual leave?
• The rate of pay for annual leave.

The critical starting point is that all the obligations of the employment relationship remain unchanged.  Employers are still obliged to act in good faith, fairly and reasonably.

Generally, variations to terms of employment must be done in good faith by way of consultation with individual employees whose terms of employment are to be affected.  The variation(s) must be agreed by the parties rather than being imposed unilaterally.

Some employers may now be at a point where they have to start thinking about and taking steps to ensure survivability and continuity of the business.  That may involve considerations of restructures and redundancies.

Employers are reminded that if they applied for and received the wages subsidy after 4pm on 27 March, the declaration they made to MSD includes that for the period of the wages subsidy they will not make redundant any Employee that the wages subsidy covers.

However, Employers are not prohibited from starting to plan for restructures and redundancies and commencing the consultation process during the 12-week period.

An employer’s good faith consultation requirements under section 4[(1A)](c) of the Employment Relations Act 2000 and case law continue to apply.

Restructures and redundancies could potentially be a complex option for many Employers, and they are encouraged to seek legal advice before taking any steps in that regard.

Our highly skilled and experienced employment specialists are available to assist Employers and Employees with tailored advice on any of the above issues, or any other employment related problems/questions.