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COVID-19 - Issues for employers at Alert Level 3

By Mike Gould

COVID-19 - Issues for employers at Alert Level 3

Updated 1 September 2021

You can check the most up-to-date NZ Covid-19 Level 3 information at: https://covid19.govt.nz/alert-levels-and-updates/alert-level-3/

At Alert Level 3 the headline requirements for workplaces are:

  • People must work from home if that is possible;
  • There must be no physical interaction with customers;
  • Your workplace, including delivery or pick-up, must be contactless – customers pay online, over the phone or in a contactless way.
  • Workplaces must be able to be operated safely, including a requirement for one metre physical distancing.
  • Businesses need to display a QR code and have an alternative contact tracing system.

Can employees be required to return to work?

Providing that the workplace meets the above headline requirements, an employer can require the employees to return to the workplace. In the absence of special circumstances, a refusal by an employee to return to work would justify disciplinary action.

A vulnerable employee with an underlying health condition may be justified in declining the instruction to return to work. The employer should obtain medical evidence supporting that position.

The government encourages people to keep their children at home and to continue to learn from home. However, early learning centres, schools, and kura can open for children whose parents need to go to work and have no available options for childcare. Play centres and playgroups must remain closed.

Do employers have to continue payment to employees who cannot work at level 3?

The general principle of law is that so long as an employee is “ready willing and able” to work, he/she is entitled to payment. In circumstances where employers are unable to open their workplaces (for example, a customer-facing retail outlet) the employer may take the view that the employees are not able to work, due to circumstances beyond either’s control (i.e. government regulation) and therefore not entitled to payment.

Operating the workplace safely – have a plan.

Health and safety measures should be implemented for the reopening of the workplace. Employers should have a specific written plan that covers matters such as the following and who will be in charge of each step:

1.  How will risks be managed from restart?

Consider what changes there needs to be to the workforce, rosters, hygiene requirements (surfaces, separation, toilets) maintenance, and ventilation systems.

Who is responsible? Make sure you know who is responsible for making these changes and checking.

2.  How will employees know how to keep themselves safe from exposure to Covid 19?

  • Written guidance should be provided,
  • meetings are held to discuss distancing and hygiene, and
  • regular reviews of how things are operating.

It may be appropriate that masks are worn while at work. Again, allocate responsibility for overseeing this.

3.  How will you gather information on the wellness of the employees?

  • consider daily health screening checks,
  • discuss options with employees,
  • put in place follow-up procedures for ill workers, and
  • importantly: contact tracing information.

Allocate responsibility.

4.  How will you operate in a way that keeps workers and others safe?

  • Consider who needs to be in the workplace,
  • get worker’s input on different ways of working,
  • assess what other people or businesses you must interact with and ensure separation distances,
  • disinfect surfaces and shared equipment,
  • ensure physical separation, and
  • ensure there is adequate personal protective equipment available.

5. How will you manage an exposure or suspected exposure to COVID-19?

  • Consider isolation procedures,
  • gathering and using workplace contact tracing information,
  • clean down procedures,
  • contact Healthline.

If an employee is sick, they must stay home on sick leave (if any). If they have cold, flu, or COVID-19 symptoms, they need to call their doctor or Healthline and get advice about getting tested.

6.  How will you evaluate whether your processes and controls are effective?

  • Constant review and adapting plans to find better and easier ways to do things,
  • ensure workers are raising concerns or solutions giving them opportunities for that,
  • conducting regular reviews of your plan, and
  • communicating changes to workers.

7.  How do you review how these changes impact the risks of the work that you do?

  • Review existing critical risks and whether work practice changes will affect risk management,
  • are any new critical risks introduced due to changes in work numbers or work practices, and
  • what new risk controls are required?

If you've got any questions on how you can operate your business in these COVID times, you can look further at https://covid19.govt.nz/alert-levels-and-updates/alert-level-3/ or on the Ministry of Business and Innovation website: https://www.mbie.govt.nz/about/open-government-and-official-information/coronavirus-covid-19/. Alternatively, we'd love to hear from you, just contact one of our Business and Employment experts:

Claire Byrne | email Claire  | P: 04 916 7483
Mike Gould | email Mike | P: 04 916 6302
Nikki Farrell | email Nikki | P: 04 916 6426

Disclaimer: The information contained here is of a general nature and should be used as a guide only. Any reference to law is to New Zealand law and legislation. We recommend before acting on it, you consult your accountant or tax adviser