Question: What is the process from an HR perspective if my business needs to close temporarily?

Businesses may need to close temporarily for a range of reasons. It’s possible that the government will enforce a lock-down. Or, there may be a suspected or confirmed case of COVID-19 at your workplace and several of the team required to self-isolate, causing an operational disruption requiring closure. In addition, some businesses/industries have been so immediately impacted (e.g. by large contracts being suspended) that they need to close. If your business needs to partially or completely shut down temporarily due to the pandemic, we recommend that you go through a condensed consultation process with impacted employees.

This involves proposing your plan to employees, seeking their feedback, confirming your final decision/plan and then implementing the change. This can all be done within a short timeframe if required. If the closure needs to happen immediately, this consultation process can be carried out in the course of a single meeting or over a one- or two-day period.

In the case of temporary closure, you can seek to suspend employees’ duties or request they undertake alternate duties or work from home or another location. If suspended, it may be agreed that the employee first takes annual leave. After that, they may transfer to unpaid leave or you may come to another arrangement if your business is financially in a position to do so. We advise businesses to err on the side of generosity and try to allow for some special paid leave wherever possible – our experience suggests that you will be rewarded with the loyalty and support of your employees in the long run.

We recommend you first find out what wage subsidies may be available as this will be important to know prior to coming up with your proposal and talking to your people. You can find that information here.

While it is reasonable to run a shortened process in the case of an enforced immediate business closure, good documentation will reduce your risks and also ensure that your employees fully understand what is happening and why. Outlining the business case, plan and outcome in writing will allow employees to take this information home and digest it properly, as well as seek support and advice from friends and family.

Check your Individual Employment Agreements for a Force Majeure or Business Interruption clause – if you have one included, ensure that you are honouring these terms and conditions as a minimum and refer employees to the clause in your communications.

If you need assistance with documentation and running meetings, Positive People are available to help. 

Question: Should I have people working from home wherever possible?

Yes, wherever possible. Social distancing is the right thing to do, so we recommend following government advice and having people work from home if you can.

We have also heard of some creative solutions for reducing the risk in the workplace. For example, splitting the team into two and asking them to only attend the workplace on alternate days, and work from home the other days. This reduces the number of people in the office and would halve the amount of people exposed if someone becomes unwell.

Question: What should I do if my employees have children at school or daycare/kindergarten who are impacted by closures?

If you have a smaller business, you can approach this situation on a case-by-case basis but for larger businesses you need to think about precedent and fairness, so may need to decide on an approach that can be applied to all staff in the case of school and pre-school closures.

The first thing to consider is whether the employee can carry out some or all of their duties from home – or whether they can pick up alternate duties that can be completed from home. If you can accommodate the employee working from home, other things to agree include working hours, availability for phone calls and virtual meetings and/or required outputs. If the children are young there may be a requirement to be flexible with hours (e.g. some hours worked on the weekend when other carers are available, early in the morning or late at night) or reduce hours.

In the event that the employee cannot work from home (either due to the nature of their work or because their children are young and require constant supervision), you may agree that they should use annual leave first, and then transfer to paid special leave and/or unpaid leave.

Question: What are my obligations if an employee is advised to self-isolate?

In this circumstance you can apply for the government COVID-19 leave payment to pass on to them. Information on the payment and process is here. You may also choose to partially or fully top up this payment. However, you should also consider other alternatives, such as working from home. If you are unable to offer a top up and the employee has enough sick and annual leave balance available, you may agree for them to use this instead.

If an employee is required to self-isolate but they still want to attend work, you must tell them to stay away from the workplace and comply with the self-isolation directive. Allowing the employee to return to the workplace when they are subject to the self-isolation directive may constitute a breach of your duties under the Health and Safety at Work Act 2015. Likewise, if they become unwell (but are not under a self-isolation directive) but still want to come to the workplace.

If an employee comes to work when sick or in breach of the self-isolation directive, you may consider that this constitutes serious misconduct, being a breach of a lawful instruction and a breach of their employee health and safety obligations.  Following a full and fair process, this may warrant disciplinary action.

Question: What should we do if one of our employees lives with or has been exposed to someone who is ‘self-isolating’ due to travel, illness or exposure?

Again, smaller businesses may be in a position to take a case-by-case approach to this. This would allow you to take all relevant factors into account and agree on the best solution. However, if you have a larger business you will need to decide on the best approach and communicate this to your team.

Some businesses have decided that if an employee has any exposure to someone in self-isolation they must stay away from the workplace for 14 days. This scenario may not be covered by the government COVID-19 leave allowance but may be covered by the government wage subsidies. Alternatively, you may agree on the use of annual or sick leave, or offer some paid special leave where possible.

Question:  Can I require employees to work from home?

You are entitled to ask an employee to work from home.  You will have to provide the necessary equipment/systems, such as a computer, mobile phone, relevant software access etc. In some cases, employees may agree to work from home and offer to use their home equipment. In this case you may choose to come up with some form of compensation – for example, a contribution to the monthly wifi and phone bill.

It is important to note that as the employer you still have various health and safety obligations to the employee when they are working from home.  As such, it is important to ensure that you have up to date policies regarding working from home safely. Even if they have previously been provided, it’s a good idea to re-send them and request a confirmation of receipt if the employee has not worked from home before.

Question:  How do I treat leave applications for an overseas holiday made prior to 15 March 2020?

If an employee made an overseas holiday application prior to the Government’s self-isolation directives on 14 March 2020, you can instruct them to take unpaid leave for the duration of the self-isolation period on their return, after first considering other alternatives such as working from home or other leave entitlements.

If you want to request an employee not to proceed with the holiday, you may consider compensating the employee for a proportion of their holiday booking fees. Hopefully this is a relatively rare event given the travel restrictions now in place across the globe, and MFAT advice for New Zealanders to return home from overseas travel as soon as possible. In addition, airlines and hotels are allowing for deferred travel arrangements in most cases.

Question:  How do I treat leave applications for overseas travel made after 14 March 2020?

Given current travel restrictions and advice, it is unlikely you will receive applications for overseas holidays. However, there may be circumstances where employees want to travel – for example, to attend a wedding or funeral. Regardless, you should advise employees that leave applications will be treated more strictly due to the restrictions in place due to COVID-19.

You may choose to communicate that annual leave for the purposes of overseas travel will only be approved in very rare circumstances, and that you will have to reach an agreement regarding the management of any self-isolation period upon their return.  You can also advise that if an employee proceeds with overseas travel without your agreement, this may constitute serious misconduct.

Of course, you are entitled to deny an overseas leave request on operational grounds if you cannot accommodate both the holiday and any self-isolation period required on return.

Question: What should we do about work-related national and international travel?

Remain aware of the Ministry of Health’s travel advice, which is regularly updated. You must consider this in relation to your health and safety obligations and make a decision from there.

At the time of writing, international travel is not recommended at all and as such employers have cancelled or postponed all overseas travel. If you still have people overseas on work-related travel you will no doubt be assisting them in coming home.

You may also decide that work-related national travel (via airline) only take place where it is considered essential and where it is agreed by the employer and employee.

Question:  How should I respond if an employee is concerned about contracting COVID-19 at work?

If an employee advises you that they believe they are at risk of contracting COVID-19 by attending work, you must consider the basis for the employee’s concerns. We know that for many, the COVID-19 pandemic is causing high levels of stress and anxiety. This is a very real and genuine wellbeing concern. Furthermore, some employees may be particularly vulnerable due to age, pregnancy or pre-existing conditions, or be worried about a family member who is. As an employer, it is important to show support, compassion and look for solutions.

If you agree that the employee’s concerns are reasonable, then you must take all reasonably practicable steps to ensure the health and safety of your employees, such as limiting meetings (or reducing attendees), moving work stations to increase distances between them, and implementing hygiene policies.

The employer and employee may agree to vary the employee’s duties or location of work in order to address the employee’s concerns.  Where practical, you could allow the employee to work from home for a reasonable period of time.

Question:  What do I need to do if an employee is exposed to or contracts COVID-19?
If an employee has been exposed to or contracts COVID-19 and has attended the workplace prior to diagnoses, you must first work with Healthline (call 0800 358 5453) to determine what actions you need to take. This is likely to include immediate closure while you assist in identifying close contacts and working with Healthline on advising them on steps for testing and self-isolation. You will also need to seek advice on cleaning the workplace prior to people returning to work. Any employee who has contracted COVID-19 must not return to work until they are cleared by a health professional.

In terms of how you treat the period of absence for anyone who has contracted COVID-19, contractual sick leave or the government-provided COVID-19 leave could kick in. Taking the government COVID-19 leave does not impact on an employee’s sick leave balance – these are separate entitlements. Employees do not have to take any or all of their contractual leave before becoming eligible for COVID-19 leave. Different forms of leave can be taken concurrently, but as the employer you are not required to pay the employee more for that time on leave than what you would have otherwise had the employee worked.

However, in the event that the employee has been exposed to or contracted COVID-19 at work, we recommend that wherever possible, you ensure that the employee is paid no less than they would normally be paid for the period of self-isolation or illness.

Question: What should I do about my upcoming conference / training or other work-related event?

If the event is overseas or would involve a large number of people gathering inside (more than 100), it should be deferred.

If the event is in New Zealand but requires travel for participants, you should seriously consider deferring it if possible. With the possibility of a government enforced lock-down of workplaces, it may be more cost effective to postpone the event now than to wait until the last minute.

If the event is local and does not require travel, check for the latest guidance for small events and make a decision from there. Keep in mind that attendance is likely to be lower than usual if you go ahead. People may choose not to attend due to their own wellbeing concerns, their own company policies (if they do not work for you), childcare responsibilities (if schools close), self-isolation and illness – bear in mind that common colds are likely to increase as the weather cools but people are advised to remain vigilant and stay at home if unwell.

Question:  I may need to downsize the business due to the economic impact of COVID-19. What is the process?

As the economic impact of COVID-19 continues to worsen, you may be in the difficult situation of needing to seek to reduce expenses by restructuring your business and implementing redundancies.

As with any restructure, employees must be advised of the proposed changes, and their feedback must be considered before any changes are made.  However, given the nature of the economic impact from COVID-19, it would be reasonable for the timeframe for this consultation to be shortened significantly.

Although inevitable in some situations, redundancy should be a last resort. Be sure to consider alternatives such as voluntary redundancies, reductions in hours (again, some people may volunteer), reductions in pay, changes in roles and locations. You may also agree on leave arrangements – for example, you may agree that employees use one day of annual leave per week until their balance reaches zero, before transferring to one day per week of unpaid leave.

As with temporary closures and suspensions, ensure that you are up-to-date with government wage subsidy offers prior to coming up with your change proposal.

Question: I have offered an overseas candidate a job and they have a visa application pending or they have a visa approved and were booked to travel to New Zealand. Can they still come?

UPDATED: At 2.40pm on Friday 20 March we received the following update from Immigration New Zealand:

You will be aware that the Government has put in place new restrictions at the border. We realise many employers have additional immigration-related concerns now that most foreign travellers cannot enter New Zealand.

The Government has further strengthened border travel restrictions, closing our border to almost all travellers from 23.59 on Thursday 19 March 2020.

The current temporary border measures

Exceptions can be made on a case-by-case basis by Immigration New Zealand for:

• humanitarian reasons
• health and other essential workers
• citizens of Samoa and Tonga for essential travel to New Zealand
• the holder of a visitor visa who is the partner or dependant of a temporary work or student visa holder and who normally lives in New Zealand.

No other foreign traveller can enter New Zealand. Returning residents and citizens must isolate themselves for 14 days upon arrival.

Visa processing information

INZ’s Beijing, Mumbai and Manila offices are temporarily closed. INZ remains committed to minimising the impact on visa processing times.

Residents with expired travel conditions cannot travel to New Zealand. They may apply for reinstatement of resident visa travel conditions.

INZ cannot extend visa durations. Visa fees or levies paid for completed applications will not be refunded or deferred for another visa. Applicants may withdraw an undecided application

19 March 2020