COVID 19 Level 3– Employment Law Issues – Dukesons Business Law – Employment Lawyer – Business Lawyer

April 2020

COVID 19 Level 3– Employment Law Issues – Dukesons Business Law – Employment Lawyer – Business Lawyer

This Blog isn't legal advice – if you need legal advice on any employment law issue, please contact me. I'm business lawyer (commercial lawyer) in Auckland who provides advice on a wide range of business law including employment law issues.

The Government has taken the route that I and many others thought that it might. From 11.59pm on 27 April 2020, we will be in Level 3 for at least 2 weeks, with the Government to review the situation at the end of that time.

In terms of employment law (as opposed to health and safety related issues), not much changes in the move from Level 4 to Level 3. One thing that does change, because of the right of some businesses to operate physically (where remote working won’t suffice), is an intense focus on safe working.

Operating safely means:

  • complying with the Level 3 requirements as set out here:
  • meeting appropriate public health requirements for the workplace (e.g. putting up physical barriers); and
  • fulfilling all other health and safety obligations.

This includes not having customers/clients come on to the premises (other than where they are visiting providers of essential services e.g. supermarkets) and relying on contactless trade. Note that MBIE accreditation plan requirements are supposedly to be announced next week, which may require employers to have a worksite plan for workers and customers (in the latter case, presumably for when customers can visit e.g. for essential services).

Whether or not required, it would be prudent to have a contact register. Though customers/clients shouldn’t be on the premises, there may still be visitors e.g. couriers, cleaners, etc. Employers will need to demonstrate the ability to effectively trace who has been in contact with employees and the workplace.

The details of what will be appropriate to demonstrate a safe work place will need to be worked out by each business. For example, if staff need to be physically present and might be at close quarters e.g. in an office, an employer might do any or all of the following

  • roster days in the premises or have employees work in different areas of the premises;
  • stagger breaks and work times;
  • ensure that there is distancing, which may include limiting interaction between staff as well as working a safe distance apart;
  • ensure that all appropriate health measures are taken if internal meetings are unavoidable e.g. distancing and sanitisation of surfaces;
  • ensure that surfaces are regularly sanitised and that staff are aware of good hygiene practice e.g. regular washing of hands;
  • provide protective equipment e.g. masks.

Some employees may refuse to attend work, where their physical presence is required. What the rights and obligations of the employer and employee are in the that case will depend on whether physical presence is justified and whether the employee’s concerns are legitimate (as to which, much will depend on what steps the employer will have taken to provide a safe working environment).

To deal with the focus on safety, variations to employment terms may be required, which will need to be agreed. (Some employment agreements may have clauses that enable the employer to vary terms unilaterally but care will need to be taken when exercising that right.) Variations that have been agreed to cater for Level 4 will need to be considered. For example, if variations that were negotiated are still required (possibly along with further variations) but were expressed to apply only during Level 4 or were subject to a review date, further negotiations will be required.


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