New Zealand is now well and truly in the next stage of its strategy in responding to the Covid-19 global pandemic - learning to live with Covid-19, specifically the Omicron variant, in the community. This will see employers facing a number of new challenges, including the management of large numbers of absences in the workplace and coping with flexible working arrangements.
As of 15 February 2022, New Zealand moved to phase two of the red traffic light setting. What does phase two mean?
• anyone with symptoms must isolate and get a test
• positive cases need to isolate for 10 days
• household contacts need to isolate for 10 days with a test on days three and eight
• close contacts need to isolate for seven days (with a test on day five).
Fully vaccinated non-customer facing workers who are deemed close contacts of Covid-19 can return to work in an isolated way, in addition to a number of strict health protocols.
Employees of registered critical services can attend work when they are deemed a close contact of Covid-19 if they are fully vaccinated and provide a negative rapid antigen test.
When an Employee Tests Positive for Covid-19
If an employee tests positive for Covid-19 and is sick and unable to work from home, the first port of call is for an employee to use any sick leave they have accrued. The Holidays Act 2003 provides employees with a minimum of 10 days sick leave per year if they meet the eligibility criteria. This may not be enough to cover the entire time an employee is unable to work, which means that employees will have to take unpaid sick leave for the remainder of the time they are ill - unless their employment agreement provides otherwise.
If an employer requires an employee to stay at home, when they could be working, then that employee is entitled to be paid. This follows the general principle in New Zealand's employment law that if an employee is 'ready, willing and able' to work, then the employer is required to pay the employee. However the situation is not always straightforward.
There may be situations where an employee is required to isolate (under the mandatory self-isolation guidelines), is not sick but is unable to work from home. In this scenario, the law is untested. MBIE have suggested in this situation that employers should consult (in good faith) with the employee and consider any feasible options. These could include taking leave without pay, using annual leave, taking any alternative holidays or a combination. During this time, without the employees consent, the employer must give an employee 14 days' notice before requiring them to take annual leave, this is a very unwieldy option that is likely to be unfeasible for some employers.
Employers should be aware of Government relief available to employees who are unable to work due to isolation requirements. This includes the Leave Support Scheme or Short-Term Absence Payment. Applications are made to the Ministry of Social Development. For details on these support options, please contact our employment team.
Long Leave Support Scheme
The Long Leave Support Scheme is for workers who:
• Have Covid-19; or
• Are a close contact of a person who has Covid-19; or
• Are the parent or caregiver of a dependant who has been advised to self-isolate; or
• Are in the category of people most at risk of severe illness from Covid-19; or
• Have household members in the category of people who are most at risk of severe illness from Covid-19.
The Long Leave Support Scheme is a weekly payment to help of $600.00 per week for full-time workers (20 hours or more a week) and $359.00 per week for part-time workers (less than 20 hours per week).
Similar to the Government Covid-19 Wage Subsidy, employers must use their 'best endeavours' to ensure their employees are being paid at least 80% of their normal pay. This means employers should be topping up support scheme payments if they do not cover at least 80% of an employee's wages.
Short-Term Absence Payment
The Short-Term Absence Payment is for workers who:
• Cannot work from home.
• Need to self-isolate while they are waiting on a Covid-19 test result; or
• They need to support a dependent who has to stay home because they are waiting on a Covid-19 test result.
The Short-Term Absence Payment is a one-off payment of $359.00 for each employee who meets the eligibility.
Further details are available at: Work and Income Leave Support Scheme
Make a Plan
We recommend constructing a plan now to ensure you are prepared when your workplace faces Covid-19. This can include split shifts attending the workplace, communication strategies to keep employees properly informed, contingency plans and alternative working arrangements.
If your business requires any assistance operating in the traffic light system or guidance in respect to particular employment matters, McVeagh Fleming's employment team is here to help.
Please direct any enquiries to:
See our Expertise page
Written by Melissa Johnston and Olivia Faulds
© McVeagh Fleming 2022
This article is published for general information purposes only. Legal content in this article is necessarily of a general nature and should not be relied upon as legal advice. If you require specific legal advice in respect of any legal issue, you should always engage a lawyer to provide that advice.