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.