While it may be a stressful time for many of us, it pays to remember what your rights are as an employee and that they have not changed due to COVID-19.
We have received a lot of questions about the COVID-19 alert levels for the workplace and wage subsidies.
We have put together a few frequently asked questions that we have received from employees and workers.
Your rights at work continue to be the same.
Your employer can’t simply stop paying you. Your employer can’t force you to take leave and they can’t change your employment agreement without your consent. Employers should continue paying their staff and access government support to help to cover the costs.
Terms of employment cannot be unilaterally varied.
Any changes to your current agreement have to be agreed to in writing.
They also have to be done in “good faith” – (meaningful time to consider changes and seek independent advice etc)
However, if you are at home and not sick or caring for someone else, your employer can require you to work from home if that is possible.
There are several requirements for employers and safeguards against wrongful redundancies. The decision to make an employee redundant must be “genuine” and one that a fair and reasonable employer could make regarding the circumstances.
An employer can say that they are no longer able to employ people and they are going to make them redundant because of COVID-19, but there has to be a fair process for doing this.
There will be cases in which workers may feel appropriate to agree to changes (a variation) of their employment agreements to reduce wages or hours. This is a matter of agreement; it can not be imposed on you.
If you are a casual worker, you are not entitled to an expectation of work, and therefore wages.
However, casual workers are also entitled to the government wage subsidy – if your employer is eligible to apply for the wage subsidy, you can ask to be included in their application (Provided that you would have been expected to work during the time that you will receive the wage subsidy)
It also pays to remember, If you have a regular pattern of work that has been established over a period of time – the law would not class you as a casual worker. You would have a right to continue being paid.
You can’t be made to take annual or sick leave to cover a downturn in business or any lockdowns caused by COVID-19.
Annual leave is defined in the Holiday Act 2003 as being for rest and recreation purposes.
When annual holidays are to be taken by the employee, it should be done by agreement.
If your employer tries to make you take annual or sick leave, you should make it clear that they cannot legally force you to do so. Equally, your employer cannot stop you from taking your sick leave.
Under normal circumstances, if you and your employer cannot agree on when annual leave is to be taken, your employer can make you take annual leave with 14 days notice.
You can also be made to take annual leave if the business has a regular closedown period every year, in this case, you must also be given 14 days’ notice.
You should only ever take your sick leave when you are sick. Sick leave must only be used in the circumstances where the employee, their spouse or partner, or person who depends on the employee is sick or injured.
No, not without your agreement. If an agreement cannot be reached, you would still have to be paid your normal wages as set out in your employment agreement.
Remember, your employer cannot change any terms without your permission and written agreement.
Any wage subsidy does not override employment law. Your employer is required to provide you with the guaranteed hours of work stated in your employment agreement and you should be paid your full contractual wages unless otherwise agreed to.
This is not generally true, unless there is a specific clause in your employment agreement that allows for it.
Some employment agreements contain a “force majeure” clause, also known as a business interruption clause, which either pre-date Covid-19, or have been implemented as a result.
Generally, these clauses state that the employer may reduce wages, or not pay wages at all, where they cannot operate their business for reasons outside of their control. Some clauses may also allow an employer to terminate employment in similar circumstances.
Even if there is a clause like this in your contract, it does not remove the employer’s obligations under the law, including to consult with you in good faith about any changes to your contract.
No, normal employment law still applies. Any variations to the terms and conditions of your employment must be by agreement.
Employers must pay you the full amount of the subsidy they receive, except if your usual income is less than the subsidy amount. If your usual income is less than the subsidy, your employer can pay you your normal pay and use any subsidy left over to pay the wages of other staff whose pay has been affected by the pandemic.
No, this is illegal. They have to consult with you first, as part of their duty as an employer to always act fairly and reasonably.
The consultation process usually takes around 2-4 weeks, though during the COVID-19 pandemic a shorter consultation process may in some cases be ‘reasonable’.
Even if they follow a fair and reasonable consultation process, the redundancy may also be unreasonable if your employer was eligible for the Wage Subsidy but didn’t apply and made you redundant instead.
Under New Zealand law, it is not compulsory for an employer to pay compensation for redundancy.
Your employer only has to pay you compensation for redundancy if this is required under your employment agreement or it’s otherwise been agreed between you.
If your employer hasn’t consulted with you properly, or the proposed restructuring isn’t justified, you may be able to challenge any changes to your employment conditions through a personal grievance.
If your employer received a Wage Subsidy payment but you haven’t yet received a payment or you don’t think you’ve received the right amount, you should first ask your employer if they applied for a Wage Subsidy and if they listed your name on the application.
If you believe you did not get the correct Wage Subsidy payment from your employer, you can make a complaint to Employment New Zealand.
The general rule is that you must obey your employer’s lawful and reasonable instructions. However, you’re entitled to refuse to do anything that presents a serious risk to your, or someone else’s, health and safety.
You probably won’t have reasonable grounds to refuse to work if your employer is following the public health guidelines for the current Alert Level, such as contact tracing records and hygiene/cleaning protocols.
For example, you have concerns about hygiene or cleaning practices not being put in place or properly managed in your workplace. You should first bring this to your employer’s and your health and safety representative’s attention.
If it’s not resolved, and if you’re in ‘imminent and immediate danger’, you’re entitled to refuse to work or do that particular task until it’s safe.
If you are in the higher risk group of contracting COVID-19 (as per the Ministry of Health’s advice), you may be able to work if you and your employer agree that the risks of you being at work can be appropriately managed.
You may say no to work at your usual workplace if you believe that being at your place of work would expose you, or anyone else, to a serious and imminent risk of being infected with COVID-19, or any other health or safety risks.
If the risk level is minimal, but an employee refuses to attend work because they do not feel safe, the question would be whether that concern was reasonable.
If it was not, and there was an ongoing, unreasonable refusal to work, that could give rise to employment consequences. Please be aware that your employer may consider that you have abandoned your work.
However, an employer would have to take into account any genuinely held fears an employee had and whether support could be provided to the employee to address or mitigate these.
An employer cannot make changes to your employment agreement, including hours of work, wages or salary, or make you do tasks that are unrelated to your job, without talking to you in good faith and you agreeing to it. Any changes must be in writing.
Notify your manager or employer. It is open to an employer as a “person conducting a business or undertaking” to insist that people coming into the workplace comply with public health guidance.
They could therefore ask that person to leave, and if they don’t, call the police.
Please also note that some people who have a disability or health condition may not be able to wear a face covering safely or comfortably, and so are not required to wear one. These people can get an exemption card but are not required to carry it or show it.
The wage subsidy is a payment to support employers, so they can keep their employees and protect jobs for businesses during the pandemic.
Eligible employers can apply for a contribution towards the wages of their employees (or themselves, if they are self-employed).
Anyone can check your eligibility on the Work and Income website.
Your employer does not have to apply for the Wage Subsidy if they do not meet the criteria.
You can request for your annual leave to be cancelled or rescheduled, however it can only be done by agreement.