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Back into Alert Level 4, here's some HR guidance for NZ business

Maintaining communication and engagement with your team is essential. The below information is drafted to provide guidance on how you may approach this situation. Before taking any significant action or when staff are unable to agree with your suggestions, we recommend that you obtain legal advice before moving forward.

Please be aware that you cannot change wage or salary payments to staff or put staff on leave without their consent or you are at risk of a successful personal grievance being brought against your business. Read below for further information.

Suggested staff communication for non-essential businesses

You will be aware that the NZ government has placed all of New Zealand at Alert Level 4 which means non-essential businesses such as ours are not able to operate. You are required to stay at home for the next three / seven (delete one) days and follow government instructions on isolating and social distancing.

With what we hope will be a short and sharp lockdown, it is possible that our business may not qualify for any wage subsidy, so our revenue generation may stop. We will keep you informed on the wage subsidy as information comes in and let you know what is happening in respect of a wage subsidy for our employees.

We would like to support you as much as we can without compromising the long-term viability of our business and your roles. We propose to pay you for XX (e.g. 1.5 or 3) days despite you being unable to work.

We are looking for your agreement to be booked on annual leave for the other XX (e.g. 1.5 or 2 days). I request that you confirm your agreement to this by return email today so we can work through this challenging time as a team.

Suggested staff communication for essential businesses

You will be aware that the NZ government has placed all of New Zealand at Alert Level 4 and our businesses is deemed to be essential which means we will continue operating.

With what we hope will be a short and sharp lockdown, we are not yet aware of whether any additional paid sick leave will be available. We will keep you informed on any additional staff entitlements as they are announced.

Staff who have compromised immunity or severe anxiety and are not able to work will need to apply for sick leave which will be paid if they have it available.


PREPARATION FOR SIGNIFICANT CHANGES & CONSULTATION

If you have growing concerns about the impact Covid-19 is having on the viability of your business, start talking with staff now. Make sure you keep them informed of developments as they occur. Ask them what their concerns are so you can answer questions ahead of time (you don’t have to give answers immediately so take their questions, get advice and then provide answers).

Get team input to what they think is fair before deciding what your approach will be when the time comes to make difficult decisions (see template for restructures).

You will also be considering a wide range of risks / risk management strategies which do not all need to be shared with staff but will help you prepare for contingencies in terms of possible ongoing impact on your business and staff. We recommend that you let staff know ahead of time how you will approach time off, remote working, possible business closure and any other issues of concern.

For specific health guidelines on preparation, check the link below weekly to ensure you remain current.

https://www.health.govt.nz/our-work/diseases-and-conditions/covid-19-novel-coronavirus

Once you have considered all information, you will have an idea of how to move forward. Ideally, you will have consulted with staff and have general agreement on the strategy; we recommend that you also consult with an HR and/or legal advisor as well as your bank / accountant. We do not recommend making significant changes for staff even if there is mutual agreement as you are not lawfully able to agree a solution that is outside NZ employment law. Staff me later say they felt pressured due to the circumstances. This could cause problems later in a personal grievance or unjustified dismissal. The restructure process should be followed for all significant changes affecting staff.


HEALTH & SAFETY ACT

You need to understand your obligations around prevention and management as there are legal / financial penalties if you are not pro-active.Think about Health & Safety for staff exposed to the virus at work and for staff working at home. Keep evidence of all meetings, preventative actions and staff discussions as these may be needed if your practices are questioned. Ask for HR support if unsure. Check the link below weekly to ensure you remain current.

https://worksafe.govt.nz/topic-and-industry/work-related-health/workplace-preparedness-for-novel-coronavirus/


PREVENTING CONTAMINATION

This virus spreads easily even in settings where staff have the correct face masks, goggles and coverings for clothing. Even if you wear these, the virus can survive on these items for days, so they need to be changed after each exposure. However, there are some basic things we can all do to minimise the risks, and these are long established strategies, so I suggest you read and implement recommendations in link below. As an employer you must be able to evidence that you are educating staff to use these strategies to minimise risk to staff.

https://www.health.govt.nz/your-health/healthy-living/environmental-health/infectious-disease-prevention-and-control/workplace-infectious-disease-prevention


REMOTE WORKING

Where staff are working remotely, review how it is working. Are any changes needed, do staff need additional resources, is there still work to be completed? Review remote access in terms of what is needed, risk to your business and confidentiality of business information. For staff who have access to computers, you may set up on-line meeting / training sessions to maintain contact even if they are not working.

We suggest that you provide clear instructions and a policy for staff working at home (see template for policy) that details expectations on staff, for example:

  • Agreed work times are from XXXX to XXXX
  • When work is available you will be required to work from home
  • You will be required to complete training from home as supplied
  • Failure to work or attend online / phone meetings and training sessions will result in a reduction in pay


ESSENTIAL SERVICES

If your business is an essential service and requires staff to be present, then you need to review how operations are going, are preventative strategies keeping staff well and whether any new risks are presenting. You need to prepare for how you might operate with limited staff. Plan for varied scenarios such as 10% staff off work and 50% staff off work (or even more). It is important to plan so that staff are not required to work excessive hours that create risks of fatigue and subsequent accidents. Can you operate for fewer hours or days? Can you operate in partial capacity? Can you change to phone orders and deliveries?


HOW TO APPROACH TIME-OFF

Do not pressure employees to work if there is a reasonable risk of infection or obligations that they need to meet. If you expose people to unnecessary risk by implying that the business will fail without them, you may be fined if they get sick. We do not recommend forcing staff to work; psychological stress, anxiety and fear are valid issues at a time like this. You have obligations under Health & Safety legislation to take all reasonable measures to prevent physical and psychological harm to staff. However, if staff are well and choosing not to work, they are not entitled to be paid and are not entitled to sick leave. They can apply to use annual leave entitlements and once these have been used, they would need to take leave without pay (unless the government offers a funded alternative).

Staff can only take sick leave if they are unwell or caring for a dependent, same rules as have previously applied. If they are unable to work due to Covid-19 illness / quarantine in themselves or their dependents, then they may be entitled for leave support from the government. Employers can access this on behalf of staff through the Work & Income website once it is confirmed.

You may request medical testing at your cost if you have concerns. If staff do not agree to this, you may require them to stay at home on pay. A staff member under MOH driven compulsory quarantine worker is legally defined as not being available to work and you can legally decline to pay them. The thing to consider is whether they are unavailable choosing not to work (unpaid) or you are requiring them not to work (paid).

You can require staff to take annual leave, provided you try to mutually agree a date and if no agreement can be reached, you give 14 days’ notice of when the leave is to be taken. However, if you apply for a subsidy for a staff member then it is likely that you will not be able to force people to take leave (once announcements are made, you need to check the requirements on you).

BUSINESS CONTINUITY & INSURANCE

If you have insurance that may cover these scenarios, contact providers now so you understand what is / is not covered. If you do not have any cover, you may end up in a position where you can no longer viably operate your business. This may mean temporarily closing your business during the crisis or making staff redundant. We recommend that you obtain legal and HR advice in these cases.

If you are reliant on overseas suppliers who may no longer be operating, we recommend that you start considering local options now. If your customers are overseas, you need to consider the implications of this and whether there are alternative markets.

Understanding what options are / are not available will help you know what staff should be aware of in terms of the possible impact on their employment.

ACTIVATING ‘FORCE MAJURE’

We recommend that you check all staff employment agreements now to see if you have a ‘Force Majure’ or similar clause that enable you to close your business or place staff on unpaid leave without notice in the event of a major event outside your control such as this. Then you can let staff know that while this is not a point you want to reach; you may have to do so.


REDUNDANCY

We recommend that you check all staff employment agreements now to see if you have a ‘Redundancy’ clause and what this requires. Some involve payments for redundancy and others only require payment of notice. You need to understand your obligation before making significant changes to staff roles, pay or any other aspect of their agreement. Significant changes mean staff can claim they are redundant and eligible for any payments in their employment agreement. If you are considering that redundancy may be needed in your business, seek legal advice prior to starting any discussions with staff.


NEED FURTHER SUPPORT?
Comprehensive HRSupport is available from Phyllis Gardyne Ph. 021 512 6412 or email phyllis@nzim.co.nz

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