Payment Options

There are several reasons why an employee may not be able to work in severe weather events such as our current situation including:

• An employer may be unable to provide work for employees who are willing and able to carry out their agreed hours of work;
• An employer may be unable to provide a suitable and safe workplace for employees who are willing and able to carry out their agreed hours of work;
• Employees can’t access the workplace because of restrictions not directly related to their own workplace and out of their employer’s control (e.g., road closures, safety issues relating to adjoining buildings, evacuation due to flooding or tsunami risk);
• An employee (or their dependant) is sick or injured and unable to work;
• An employee has to care for a dependant because usual care is unavailable – such as current school closures;
• An employee is willing and able to work but their usual mode of transport is unavailable.

In relation to payment, in general, employers must compensate those on their payroll who are ready, willing and able to be work – even if you are unable to assign work to them. Depending on what is stipulated in the employment agreement, employers may be released from their contractual obligations, such as having to pay workers or continue their employment, if the agreement contains a ‘force majeure’ clause. That is, when an extrinsic event such as weather “renders the employment agreement impossible to perform.” This would be a situation where you are unable to operate for a lengthy period.

For shorter periods, there are a range of mutually agreed arrangements that could be implemented such as:

• Annual leave;
• Anticipated annual leave or additional annual holidays;
• Using an entitled alternative holiday;
• Special leave, either as provided for in employment agreements or workplace policies or by agreement between the employer and employee;
• Leave without pay;
• Employees can take sick leave if their partner or dependents are injured or sick and they have sick leave available or the employer agrees to extra sick leave;
• Other paid or unpaid leave either as provided for in employment agreements or workplace policies or by agreement between the employer and employee; and
• Advance on wages.

Whichever option you and your employee agree on may depend upon the circumstances, including the nature and extent of the emergency or disaster and how long it lasts for. Once all leave entitlements under the Holidays Act 2003 and any negotiated additional leave or any anticipated leave entitlements run out, employees and their employers will need to consider further options in good faith (and consider the impact these options will have on your business’s recovery later).

Remember, if there are any changes to employee’s terms and conditions as an outcome of mutually agreed arrangements, make sure you get these documented and signed off by both parties.