COVID-19 vaccines and the workplace

COVID-19 vaccines and the workplace

COVID-19-vaccines-and-the-workplace

Global overview of workplace vaccination

A sharp upsurge in infections due to the Delta variant and a slowdown in vaccinations have pushed governments around the world to make COVID-19 jabs mandatory for health workers and other high-risk groups.

A growing number of countries now require proof of vaccination, or a negative Covid test to enter hospitality business or large public events – in particular, many indoor events mandate evidence of vaccination.

New York City for example, will become the first major U.S. city to require, from mid-September, proof of vaccination for customers and staff to be at restaurants, gyms and other indoor businesses as the US enters a new phase of battling the Delta Covid variant.

Can I make vaccination mandatory for employees?

In New Zealand, getting the Covid-19 vaccine is voluntary for most people. However, anyone who works in a high-risk border or managed isolation and quarantine (MIQ) setting legally must be vaccinated.

In addition to this, businesses providing services to potentially high-risk areas having conducted proper health and safety risk assessments and concluded that the role/tasks should only be performed by a vaccinated worker may require vaccination.

This is because of the health & safety risk whilst performing the role and the potential consequences of that risk, and holds true in situations where the use of PPE or extended distancing between workers is not viable.

Not all essential service providers require mandatory vaccination

Be aware that just because an employer is providing services to essential workers, it does not automatically put the roles into the mandatory vaccination category i.e., a number of essential work activities do not present increased risk not manageable with PPE, etc.

This means that the focus is strictly on what is required to perform the role just as you would for any role e.g., a truck driver – which requires a specific licence.

WorkSafe has useful information and tools to assist with assessing the risk to ascertain if a specific role needs to be performed by a vaccinated worker.

Management of employee personal health records regarding vaccination

Vaccinated status or otherwise is personal information and the Privacy Act states that it should only be requested where necessary. It is not necessary if the work has not been assessed from a health and safety perspective.

If roles within your business meet the health and safety threshold, you can ask employees if they have been vaccinated but they do not have to tell you if they have, or why they chose not to.

The reality is that most employers do not have an environment that meets the very limited circumstances identified by the Government as justifying mandatory vaccination, and you could potentially be exposing your business to Privacy Act, discrimination, or disadvantage claims by insisting on having this information.

Importantly, you may not discriminate against employees who choose not to get the vaccination – there may be religious or medical reasons why a person cannot be vaccinated.

Can my main contractor or client mandate that my workers are vaccinated, wear face coverings and record their attendance?

Vaccinations

As outlined above, if a particular role meets the health and safety threshold in terms of it being high risk and that vaccination/mask-wearing is a genuine occupational requirement then yes, you can mandate this for your role. Clients to whom you contract with can pretty much put in place whatever rules they want to, and your business needs to establish ways of meeting their requirements.

Roles that might have a genuine occupational requirement for vaccination include:
 
  • Front line workers – border/MIQ staff, medical professionals, supermarket workers etc
  • Aged care facility workers – due to the high-risk level for aged care residents if they contract Covid-19.
  • People working with children who are below the vaccination age.
Other roles which could also be considered as having a genuine occupational requirement include:

 

  • Hospitality/café workers who have face to face contact with customers, but not necessarily in a high-risk environment such as at the airport.
  • Back of house roles (e.g. administration) who work in higher-risk companies, but not actually in the high-risk area themselves.
  • Customer-facing roles, particularly in high traffic areas such as shopping malls.
  • Construction sites where there are high numbers of personnel in a confined area.

Employers need to assess the risk assess each job and decide if mandatory vaccination can be justified due to occupational requirements.

Recording attendance

At Alert Levels 1 and 2, businesses are only required to display a NZ COVID Tracer QR code or have an alternative way people can record their visit, but it is recommended that all businesses implement steps to encourage people to record their visit.

At Alert Levels 3 and 4, most businesses that are open must have systems and processes in place to ensure, as far as is reasonably practicable, that everyone aged 12 years or older who enters their workplace records their visit. This means more than just displaying the QR code, as required at all alert levels. It requires the person in charge of the business or service to have systems and processes in place to ensure that people do check in.

Can I ask candidates whether they are vaccinated during a job interview?

Businesses can only ask candidates if they are vaccinated when this is justified by the requirements of the role. For example, if a business decides, following a COVID-19 exposure risk assessment, that certain work cannot be performed by an unvaccinated worker, it may be reasonable to ask about an applicant’s vaccination status. This information will need to be collected and handled according to the Privacy Act.

What can I do if my employee in a high-risk role refuses to be vaccinated or wear a mask?

If employees are doing work that can only be done by a vaccinated worker, but are not vaccinated, in the first instance employers will need to address any practical barriers to accessing vaccination (e.g., checking if travel or time off work is needed). There are a range of other options that employers concerned should think about before considering termination such as: changing work arrangements or duties, taking leave, and restructuring work. Obviously, employers should take care to be fair and reasonable in their response, and work through processes with employees in good faith before deciding on any outcome.

Fortunately, the acceptance and understanding within the New Zealand community that vaccination is a reasonable and responsible step we can all take to protect the health and Safety of ourselves, and others seems to be gathering momentum and increasing.

Summary of advice to employers around mandatory vaccination

  • Before requiring mandatory vaccinations of staff – assess the risk, it is likely that it can be solved via PPE/risk reduction measures. In fact, there are very few roles/industries where the risk is so great as to require mandatory vaccinations to keep employment. Therefore, dismissals resulting from lack of vaccinations is in the majority of cases not really an option.
  • Consulting and communicating with staff and ensuring the Privacy Act is maintained throughout the consultation.
  • Seeking feedback from staff about what you are considering – perhaps introducing a voluntary register to begin with.
  • If clients request mandatory vaccinations of your staff who attend their worksites – ask the client for further information so that you can understand their risk assessment which requires vaccination information as a condition of contracting services.

As this is a rapidly changing area, if you have any questions about vaccinations and employment or you just need some general HR guidance and expert advice, please give us a call, we would be very happy to assist you.

Contact us to find out how we can help your business.

Employee rights in NZ during natural disasters & emergencies

Employee rights in NZ during natural disasters & emergencies

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Employee rights in NZ during emergency and disaster management

Do employee rights in NZ change in the situation where you are managing a civil emergency?

The Canterbury area is currently welcoming dry weather following the devastating floods they have just experienced. This impacts business owners and employees, particularly in the area of employee rights in NZ where there is a natural disaster or emergency to be managed.

This weather event was so severe, the MetService issued a rare ‘Red Warning’ – which means an event is expected to be among the worst that we get. This means the weather will have a significant impact and the possibility that a lot of people will be affected.

In situations such as these people have to take immediate action with no time for giving consideration to matters such as ‘what are employee rights during flooding events or other natural disasters’.

The Heath & Safety at Work Act 2015 requires employers to put the safety and wellbeing of employees before all else

With infrastructure such as roads and bridges destroyed, causing disruption to transport – along with businesses and schools potentially being closed, and homes being damaged – this could leave some workers struggling to get to work.

When natural disasters or other serious events occur, the primary concern of all employers and their employees is the health, safety & security of people.

This comes before thinking about the interests of the business or organisation and during these events employers and employees should try to keep in regular contact and deal with each other in good faith.

Things for employers to consider in the face of a natural disaster:

  • Take care of the health and safety and wellbeing of your team, yourself, and your customers/clients.
  • If the workplace isn’t safe, don’t require your staff to work there. Make sure it’s safe first. Employees can stop work because of health and safety concerns under the Health and Safety at Work Act 2015. It’s primarily the building owner’s responsibility to ensure that buildings are assessed to determine whether they have withstood the event and remain structurally sound (in accordance with the Building Act 2004). Employers who occupy the building should follow the owner’s advice and be satisfied that the owner is performing their role. If an engineer or other competent professional advisor advises to not re-occupy the building, the building should not be re-occupied.
  • Proactive communication and support following a disaster are key to getting the business up and running again as quickly as possible. Contact your employees as soon as possible to advise them of the workplace situation and your expectations of them. Give them updates even if they are not required to be at work so that they know what is going on. Use texts and social media where possible to minimise overload of the telecommunications network. Remember your team could be under additional stress, provide them with support and help and show your concern. This could include access to an employee assistance programme for counselling, having a team debrief, daily blog or email.
  • If public transport is unavailable or reduced, think about facilitating carpools among team members. Smaller business owners could organise carpooling with other employers nearby. Consider any impact on employees getting to work on time and whether you can be flexible.
  • Consider wider infrastructure issues (e.g., road closures, power outages or water restrictions) and the impact of these on team members getting to and from work and whether you can be flexible.
  • In an extraordinary event, you may need to approach things differently. This may include temporarily changing your leave policy, letting employees work flexibly, or adopting a flexible approach to employees making personal phone calls to check on family during the workday.
  • Think about any negative impact on pay (e.g., processing of payroll) and try to minimise this.
  • Be up front and honest with the team about the situation and give them the opportunity to ask questions and raise any concerns they may have.

Pay and leave during a civil emergency

Employees may not be able to attend work for various reasons 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.
  • An employee is willing and able to work but their usual mode of transport is unavailable.

Check force majeure clauses in employment agreement(s) and workplace policies to see if the specific circumstance is covered

Without being clear about what these documents include, employers and employees cannot just assume that time away from work in these circumstances would be either paid or unpaid. If these situations are not covered, then it is up to both parties to talk about it in good faith and agree on how the time away from work will be classed.

If an employee’s partner or dependent family member isn’t injured or sick but he or she requires care, e.g., because their child’s school is closed, the employee cannot take sick leave. In some cases, employees may be able to continue to work while caring for their family, if the employer and employee agree to this arrangement. If it is not appropriate or possible for staff to continue working, employees and employers will need to agree on what basis the employee is off work.

Leave and payment options to consider in disaster management:

  • Annual holidays
  • Anticipated annual holidays 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
  • Advance on wages

Whichever option the employer and employee agree on may depend upon the circumstances, including the nature and extent of the disaster and how long it lasts.

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 business recovery later).

NB: There are special rules for shift workers relating to the cancellation or early ending of a shift. (Seek HR advice from ConsultingHQ if you have shift workers and you are unsure of what it means for your business).

Employee dismissal for missing work during a natural disaster or emergency

In situations such as the Canterbury flooding, an employee may not be able to come to work for a variety of reasons e.g., they cannot access work due to circumstances out of their control, telecommunications systems are down and they cannot contact you, or they themselves are injured or sick.

New Zealand employment legislation is very clear that employers must follow a fair and reasonable process in disciplinary matters, and keep an open mind when dealing with problems, and act in good faith before dismissing an employee. The reasons that an employee could be dismissed for during a disaster or emergency are very specific.

If your business is faced with a potential disciplinary situation, we recommend you seek advice from ConsultingHQ Consultants before taking any action.

Contact us to find out how we can help your business.

Vaccinations in the workplace

Vaccinations in the workplace

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Covid-19 vaccinations in the workplace

COVID-19 vaccines will play a critical role in protecting the health and wellbeing of people in New Zealand which will enable our social, economic, and cultural recovery.
Workplaces in New Zealand will be essential in making access to vaccines as easy as possible for all those employed in them – including employees and independent contractors. To help New Zealand’s COVID-19 Immunisation Programme succeed, the Government is recommending employers encourage and support their workforce (including part time, casual and independent contractors) to get vaccinated.

This could include:

  • facilitating on-site vaccinations
  • allowing workers to get vaccinated during work hours without loss of pay, and
  • providing workers with relevant and timely information from the Ministry of Health about vaccination and its benefits.

What are my responsibilities as an employer in relation to the Covid-19 vaccine?

The Health and Safety at Work Act 2015 states that employers have an obligation to ensure a safe workplace, as reasonably as they can, and vaccinations can be critical to this. Therefore, an employer must do what is reasonably practicable to reduce the likelihood of infection in the workplace.

As it is not mandatory, what can employers do to get their employees vaccinated?

Ideally, all the workforce would choose to be vaccinated to control the risk of infection, some may not, therefore a business must have additional health and safety plans in place to manage these circumstances.

Can an employer request its employees to be vaccinated?

The employer can request but cannot require an existing employee to be vaccinated.

If an employee refuses to be vaccinated, what can an employer do?

In relation to health and safety in the workplace, a PCBU (person conducting a business or undertaking) must ensure health and safety as far as reasonably practicable.

Given the current state of transmission in New Zealand, where workplaces have been able to operate safely without vaccinated staff, it will currently be hard to argue that a person being unvaccinated is a significant health and safety risk but that will depend on the industry and any further changes (such as borders opening).

The employer can ask employees whether they have been vaccinated for risk assessment purposes. If an employee declined to provide the information, the employer should proceed as though the employee has not been vaccinated but should first inform the employee of this assumption.

If workers in the workplace are not vaccinated, the PCBU should do a risk assessment to decide if further control measures are needed to reduce the risk of transmission. Alternative control measures could include (but are not limited to): lower risk duties or worksites for the worker; eliminating or limiting close or face to face interaction with others; working from home where possible; increased social distancing requirements; increased hygiene and cleaning practices; additional training and posters; temperature checks; and additional PPE.

If an employer believes on reasonable grounds that there is a real and imminent risk to health and safety which can only be adequately addressed by vaccine (this is only likely to be in very limited situations where close contact is unavoidable and PPE not wholly effective e.g. health care situations) the employer must consult with the employee and explore all reasonable alternatives and it will only be when all other options are exhausted, that termination of employment would be justifiable. The employer should take specific expert advice on the health and safety requirements, risk and employment implications.                                                       

If your employee refuses to be vaccinated, taking no further action to prevent infection in your workplace will not satisfy your legal health, safety, and wellbeing obligations.

Can I make vaccinations a condition of recruitment?

Employers can require vaccination as a condition for new employees, but only where this is reasonable for the role e.g. where the employer has identified real and imminent risk to an employee working without vaccination and has considered alternatives. This is only likely to be reasonable in limited circumstances such as nursing homes.
Employers need to be careful that they are not exposing themselves to discrimination claims by rejecting an employee based on the candidate’s decision to refuse vaccination. That decision could be based on a pre-existing medical condition or religious grounds. Given the current state of transmission in New Zealand, where workplaces have been able to operate safely without vaccinated staff, it will currently be hard to state that a person being unvaccinated is a significant health and safety risk unless the business is particularly high risk or there is a law change. However, when NZ’s borders reopen, this may create a different situation.

Can employees take leave when they get vaccinated?

If an employer is asking an employee to receive the vaccine, then the employee should be paid for the time it takes to get the vaccine. If the employer is encouraging employees to receive the vaccine, the employer should discuss time off work and whether the time will be paid with the employee and come to a mutual agreement. Employers should consider whether allowing paid time off work will help encourage staff to receive the vaccine.

Vaccination Policy – Our Recommendation.

Start now by thinking about factors specific to your particular workplace including:

  • What do your employment agreements include? Requiring a new employee’s agreement to be vaccinated as a condition of commencing employment is likely to be lawful in most circumstances, However, employers must exercise caution when deciding not to hire an employee whose refusal to be vaccinated is linked to a human right such as religion or disability.
  • What risks are you managing in your workplace by seeking to require vaccinations?
  • Are you providing a safe and healthy workplace if you don’t require vaccinations?
  • Are other steps being taken to achieve the same outcome of minimising the spread of the virus, such as physical distancing, mask wearing and/or sanitising?
  • Is it relevant what the prevalence of the virus is at the time vaccinations are being required?

Commence conversations with your employees about COVID-19 vaccinations as soon as possible. The consultation and support approach is the best way. Remember that all discussions about COVID-19 vaccination must be fair and reasonable and done in good faith.

Keep up to date with information that is provided on NZ government websites and think about where your business and workers fit in the vaccine rollout. Share information with your team.

Make vaccination as easy as possible for your people.

If your business is considering a vaccination policy for employees as part of your response to Covid-19, please feel free to contact us for advice specific to your situation.

Contact us to find out how we can help your business.

Coronavirus (COVID-19) pandemic – Guidance for employers

Coronavirus (COVID-19) pandemic – Guidance for employers

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Coronavirus (COVID-19) Pandemic – Guidance for Employers (in a changing environment)

[Date of Release 16 March 2020].Please note this information is of a general nature and may be partly out of date due to the unprecedented and fluid nature of developments to hand. Please contact our team for up to date assistance.

In the current changing environment relating to the COVID-19 outbreak we all need to have a flexible approach and keep up to date as things constantly change. For example, over the course of the last week what was the “right answer” to some questions changed, as the government’s response to the pandemic changed.

Now that there are a number of cases in New Zealand (with more expected over the coming weeks), and in light of the government’s announcement of a 14-day compulsory self-isolation period for arrivals from nearly all international ports of origin, below are a list of practical suggestions for employers to follow.

Keep a close eye on changes

  • The Ministry of Business, Innovation and Employment (MBIE) is continually updating its guidance to employers about the workplace response to COVID-19, so we recommend employers keep checking this guidance.
  • Employers and employees need to be flexible.
  • Ultimately, there is no substitute for good communication with your employees and planning for a range of different scenarios in advance.
  • The government are reportedly exploring a range of measures to support employers so that they can maintain employment for as many employees as possible. Keep a close eye on announcements over the next week and factor those into your decision-making.

Health and safety considerations

  • Employers must manage the health risks to workers and other people affected in the workplace, taking them seriously and treating employees in good faith. Employers should plan ahead and work with their employees to address likely scenarios arising from COVID-19.
  • Employers are required to take all reasonably practicable steps to eliminate or minimise risk and protect their employees at all times from workplace hazards. Relevant risks/hazards to consider here are both the actual virus itself, and the mental health issues that may arise for employees given the stress of such an uncertain situation.
  • To minimise the risk of spreading infectious diseases in the workplace, encourage employees to follow the Ministry of Health guidelines regarding basic personal actions that we can all take to stop the spread of infectious diseases.
  • Employers should also consider providing flu jabs for their employees this flu season. They won’t protect against COVID-19 but will at least protect against a number of strains of influenza.
  • To minimise mental health impacts on your employees, our advice is communicate early, and communicate well.
    If you offer EAP support, make sure that the contact details are well publicised.
  • Managers are best to avoid “joking” about the situation – there are likely to be a range of responses to this type of situation within a workplace (from people who are less concerned to people for whom this could cause more severe mental health responses).
    Have a plan for what might happen in a wider outbreak situation, and ensure that your employees are aware of that plan in advance.

Leave and pay – various scenarios

  • The rules on annual leave, sick leave and alternative leave in the Holidays Act are quite clear – but none of these neatly apply to a compulsory self-isolation situation in which the employee is not actually unwell.
  • A range of possible scenarios could arise within your workforce. Every employee’s particular circumstances need to be considered, but there are some general principles to guide your planning for these situations.

If an employee is sick with COVID-19 or any other illness (or has a dependent who is sick)

  • The employee should not be required to work. Furthermore, if the employee has COVID-19, they should be directed not to work (whether at home or in the office) until they have been advised by public health staff that they no longer be in self-isolation.
  • The employee is entitled to sick leave if they satisfy the relevant eligibility criteria in the Holidays Act or their employment agreement.
  • If the employee has run out of sick leave or has no entitlement yet, they can request annual leave or alternative holidays that are available to them (an employer should most likely agree to this but isn’t required to).
  • They might also seek paid leave in advance of entitlement. An employer cannot direct an employee to take annual leave against the employee’s will in this situation.
  • Ultimately, in this situation, the period off work may need to be treated as unpaid sick leave.

If an employee has been directed to self-isolate in accordance with Ministry of Health guidelines, but they are not sick:

  • They should not be required to attend their workplace or mix with their colleagues/customers.
  • Employers and employees should consider whether working from home is practicable during the self-isolation period. In that case, the employee would be paid normally.
  • If an employee cannot work from home, then this is not a sick leave situation – but MBIE guidance recommends that the employer and employee consider paid special leave or the use of other forms of leave by agreement.
  • Ultimately, whether it is reasonable for an employer to withhold pay from an employee who is in compulsory self-isolation will depend on what is “fair and reasonable” in all the circumstances. This inherently means a “one-size-fits-all” approach will not be appropriate, but again, there are some general principles to consider:
  • If an employee was already overseas before the 14-day compulsory self-isolation requirement was imposed (so did not know that this would apply to them before they went on holiday), it is more likely to be unjustified for an employer to direct the employee to stay home without some form of pay for 14 days. Current MBIE guidance suggests that the expectation is that the employee will remain at home on pay, to help to ensure that self-isolation requirements are adhered to.
  • If an employee was overseas for work, and then returns home to a compulsory self-isolation period, they should almost certainly be paid for the 14 days (whether they can work from home or not).
  • If an employee chooses to continue with an overseas trip which is not required for work purposes and not necessary (purely for leisure, for example) from 16 March onwards, and does so knowing that a 14-day compulsory self-isolation requirement will apply on their return, an employer is more likely to be justified to direct that the 14-day period is unpaid. However, other forms of leave, and the possibility of working from home during that 14-day period, should still be explored first.
  • Each case will need to be considered on its particular facts. An employee who travels overseas for a close family member’s funeral may expect to be treated more sympathetically than an employee who books a holiday now with full knowledge that 14-day stand down will apply to them. Employers should engage with unions and employees on these issues and possible scenarios.

If an employee is required to stay at home because their child is required to self-isolate, but neither the employee nor their child is unwell:

  • The employer and employee should consider if working from home is possible (in which case normal pay would apply).
  • If working from home is not possible, then the employer and the employee should consider other forms of paid leave that may be available (or which could be taken in advance).
  • It is possible that this may ultimately be a leave without pay situation if working from home is not possible and no leave entitlements are available.

If an employee wishes to self-isolate but there is no requirement for them to do so under Ministry of Health guidelines:

  • The employee must notify their employer if they:
    • believe they are at risk of spreading or catching COVID-19 and why, and
    • are concerned that attending their workplace places them at risk of exposure to COVID-19 and why.
  • If the employer agrees there is a reasonable belief or concern about COVID-19, they must do what is reasonably practicable to address the risk.
  • Ways to address risk could include:
    • Mitigations in the workplace, for example providing health or hygiene support.
    • Agreeing when paid leave (including paid special leave) or unpaid leave will be used.
    • An employer may need to institute a policy where they instruct some employees to not come to work (and pay those employees normally), in order to manage the risk.
    • Allowing employee to work from home, if that is feasible for the type of work that the employee undertakes.
  • Where the employer does not agree there is a reasonable belief or concern, the employer must tell the employee this and provide their reasons for this view.
  • The employer may agree the employee will come to the workplace (or work from home) and the employee will be paid normally. The employer and employee may also agree to other arrangements, for example paid special leave. If an employee does not agree to one of these options, they will likely need to take unpaid leave.

Restructuring: redundancies are likely

It is likely that the economic impact arising from COVID-19 and the international response to it will result in employers in some industries needing to significantly restructure their spending – including staffing costs.
We are already seeing an impact particularly in the travel and hospitality industries where some employers are already having to undertake restructuring processes. It is likely that other industries will be impacted also.
As an alternative to restructuring proposals that involve staff lay-offs, employers could consult with employees to see if they would agree to a reduction in salaries voluntarily, so as to avoid a restructuring scenario. However, an employer would need employees’ consent in order to vary their employment agreements.

Employers should bear in mind their duties of good faith under s4(1A) of the Employment Relations Act 2000. In particular:

  • Consult with employees while any restructuring plans are a proposal only and before a decision is made.
  • Provide employees with relevant information to support why such a proposal is considered necessary in all the circumstances. This might include financial information about the impact of COVID-19 already, or about the projected impact.
  • Keep an open mind on other options that might avoid having to terminate employment, such as periods of leave (whether paid or unpaid), or temporary pay reductions to respond to reduced demand (and as a way to avoid redundancies across the business).
  • Ensure employees have an opportunity to provide input on the proposed approach before any decisions are made about next steps.
  • All alternatives to redundancy should be considered before notice of redundancy is given.
  • Make sure any contractual entitlements are provided (that is, notice, redundancy compensation, and any special consultation obligations that apply under the employment agreement).
  • We recommend you get in touch with your CHQ advisor in the first instance if you are considering undertaking restructuring and redundancy processes.

Privacy considerations

Employers may wish to consider temperature screening or other medical screening in the workplace. If so, there are a range of legal considerations that will apply. Employers should:

  • Consult their employment agreements to assess if any there is any broad consent provided for in agreements with their employees that allows for such screening measures.
  • Demonstrate that such measures are “reasonably necessary” and not unreasonably intrusive if the employer wants to introduce this measure for the purposes of health and safety compliance. This will be a fact-specific question – and at this stage it is unlikely to be considered something that would be reasonably necessary given the relatively low incidence of COVID-19 in New Zealand.
  • Consider and comply with all of the privacy principles 1-4 under the Privacy Act, ideally before any information is collected.
  • Balance health and safety concerns with employee rights in relation to privacy and lawful and reasonable instructions.

The Privacy Commissioner has released guidance on the Commission’s blog addressing privacy issues relating to employers telling other employees about employees with COVID-19, or who are in self-isolation but otherwise well.

The guidance suggests that a “common sense” approach should be taken as to whether it is necessary to tell other employees that one of their colleagues is unwell or in self-isolation. However, it should be noted that obligations under the Privacy Act are subject to the provisions of the Health Act 1956 which provides that a medical officer of health may direct individuals and agencies to disclose information about individuals who pose a public health risk.

If you have any questions about the matters raised in this document please get in touch with your CHQ advisor.

Disclaimer – This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.

Contact us to find out how we can help your business.