Ten important facts every business and their employees should know about the COVID-19 Delta variant and the workplace

While there is more information to know, these are key points everyone should be aware of.

1. Employment law has not changed due to COVID-19

Employment and health and safety laws still apply at every COVID-19 alert level.

Employers cannot reduce their employees’ legal minimum employment rights, this includes: the minimum wage, annual and sick leave and having a written employment agreement.

Contractual rights as agreed in employment agreements still apply. Contractual rights are those that have been negotiated, such as for better leave and/or pay.

Both parties must always act in good faith. This includes always being open, honest and communicative with each other.

We all need to work together to slow the spread of COVID-19, protect New Zealand and keep each other safe.

COVID-19 alert levels and the workplace

Good faith

2. There are specific conditions if an employer wants to change the terms and conditions of an employee’s work arrangements

An employer cannot unilaterally alter their employees’ terms and conditions of employment. If there is an existing employment agreement, the employer can only change it if the employee agrees.

An employer may want to make changes to an employee’s employment arrangements due to their financial circumstances. When making changes to their terms and conditions of employment, including redundancy or reducing hours or wages, the employer must follow certain processes. These include:

• Undertake a “workplace change” process. Employers must consider other options first and follow a fair and proper process. This includes consulting with employees and their union (if there is one in the workplace).
• Pay redundancy compensation if it’s noted in the employee’s employment agreement or has been negotiated with the employee and agreed by both parties.
• Record in writing any agreed changes to the terms and conditions of employment. 

Overview of workplace change

3. Different alert levels dictate when employees can go to the workplace

COVID-19 alert levels specify when a business’s employees can go to the workplace and any conditions that apply.

The general rule is: if an alert level allows it, the employer can require employees to return to the workplace, subject to conditions such as the employer following health and safety rules, and any agreements that were made between the parties. Employers should discuss any return to work with their employees in good faith first.

Employers need to assess whether or not work performed by their businesses are covered under the current Government Public Health order.

Businesses — Unite against COVID-19 (external link)

4. Employees’ rights to have a safe workplace have not changed

Health and safety laws and public health guidelines still apply.

The Delta variance is much more contagious. Employers and employees should talk about whether they can continue to work normally and how employees can work safely at home or at their place of work.

Health and safety law also applies to contractors and customers as well as employees.

Addressing health and safety concerns

5. Work can only be required to be done by a COVID-19 vaccinated worker under specific conditions

Businesses cannot require any individual to be vaccinated. But they can require that certain types of work, roles or positions must only be done by vaccinated workers if there is a high risk of contracting and transmitting COVID-19 to others. To do so, businesses must do a proper risk assessment to decide this.

Government Public Health Orders can also require that certain types of work must be done by vaccinated workers, for example, in relation to border workers (currently), and certain workers in the education sector (from 1 January 2022) and health sector and disability sector (by 1 December 2021).

Assess whether a specific role needs to be performed by a vaccinated worker — WorkSafe (external link)

Vaccinations and work — Unite against COVID-19 (external link)

6. Employers cannot require annual leave to be taken by employees unless conditions are met

• Employers can only require employees to take annual leave, if employees agree to it after a discussion in good faith.
• If the parties cannot reach an agreement, the employer can decide when annual leave will be taken if they give their employee at least 14 days’ notice.
• Employers cannot make employees take sick leave if they are not sick
• Employers can agree to requests of advanced annual leave, but they don’t have to
• Employers cannot force or make employees take advanced annual leave.

Employment guide for workers at different COVID-19 alert levels

7. Employees working normal hours must be paid their normal pay

Under employment law, employees must be paid for every hour they work at their agreed wage rate. This is subject to the terms and conditions of the employment agreement.

When employees are not able to work their normal hours during different COVID-19 alert levels, employers and employees (or their unions, if one is available) should discuss what options are available, including the use of wage subsidies.

Leave and pay entitlements during COVID-19 response and recovery

8. Only employers and the self-employed can apply for the wage subsidy

• An employer can only limit the wages or salary of an employee to the subsidy amount if the employee agrees to it. Otherwise, they should use the subsidy to help pay the full amount, as per the employment agreement (contract).
• Eligible businesses can apply for the wage subsidy for all types of employees, including full-time, part-time, casual, or fixed-term.
• Employers must meet specific tests to show they have been impacted due to the alert level changes.
• The employer must pass the subsidy to the employees and cannot fire them while they are receiving the subsidy.
• Employers can also get assistance for employees who get a COVID-19 test (Short-Term Absence Payment) and those who are required to self-isolate (Leave Support Scheme).
• The conditions for getting the wage subsidy (and the payment and scheme noted) are available on the Work and Income website.

COVID-19 — Work and Income (external link)

9. Information on financial support is available via the COVID-19 financial support tool

Employers and employees can access the COVID-19- financial support tool to see what they can get.

Employees can contact the Ministry of Social Development via the Work and Income website if, for example, they have been made redundant or are in financial distress.

Also, employees who think the employer is misusing the wage subsidy or Leave Support Scheme can make a complaint to Employment New Zealand.

Wage subsidy and Leave Support: Complaints about employers

COVID-19 financial support tool — Unite against COVID-19 (external link)

Help for you and your whānau during COVID-19 — Work and Income (external link)

10. Get more information and help about COVID-19 and employment law at the Employment New Zealand website

Employment New Zealand has information and services available to help if you’re not sure what the rules are, or if you have any issues. We encourage you to ask for assistance early before an issue gets bigger and more difficult to resolve:

• Visit the Employment New Zealand website, which is updated regularly with the latest COVID-19 employment information.
• Contact the Early Resolution service, which is a free phone-based service for workplace issues. It is available for employees and employers to resolve matters quickly and informally.

COVID-19 alert Level levels and the workplace

Employment guide for workers at different COVID-19 alert levels

Early Resolution

For legal advice or representation, there are options including:

• Employees: contact a union for representation, Community Law or the Citizens Advice Bureau to be put in touch with an advocate for low cost.
• Employers: contact your business association or franchisor if you are a member, or you may wish to speak to a Chamber of Commerce.
• Alternatively, you may choose to hire your own independent advocate or lawyer.

Registered Unions (external link)

Community Law (external link)

Citizens Advice Bureau (external link)

New Zealand Chambers (external link)  

The New Zealand Law Society (external link)

Note: this article is intended to only provide a general overview of this subject. To ensure you understand the context and further information, please visit the links provided.