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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

24 April 2020

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;
  • Workplaces must be able to be operated safely, including a requirement for one metre physical distancing.

Can employees be required to return to work?

Subject to the workplace meeting 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.

As schools (up to year 10) and early child care centres will be open, employers can generally expect employees with children to make childcare arrangements enabling them to attend work.

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.

Obviously, health and safety measures should be implemented for the reopening of the workplace. Employers should have a specific written plan for that covering matters such as the following.

How will risks be managed from restart?

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

Who is responsible?

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

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

Again, allocate responsibility for this.

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.

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

Consider who needs to be in the workplace; get worker  input into different ways of working, assess what other people or businesses you have to interact with, ensuring separation distances, disinfecting surfaces and shared equipment, ensuring physical separation and adequate personal protective equipment.

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

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

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 plan and communicating changes to workers.

How do you the changes impact on 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, work practices, what new risk controls are required question.


If you have any questions regarding employer responsibilities during the various COVID-19 alert levels, please get in touch with one of our employment team.

Claire Byrne | email Claire  | P: 04 916 7483
Mike Gould | email Mike | P: 04 916 6302
Richard Gordon | email Richard | P: 04 916 7464