EMPLOYMENT
AND
COVID 19
FAQ
The Traffic Light System
The alert level system is on the way out. The Government will use a new traffic light system to protect the country from Covid-19.
Auckland is on track to move to the new system from the end of November.
The Government announced a new traffic light system of restrictions in October to replace the alert level framework once the country hits ninety per cent vaccination rates in every region.
The system would eliminate almost all lockdowns and generally see schools open all the time, allowing far more freedoms than alert level 3.
The traffic light system has three colours - green, orange and red.
Auckland will move into the red colour - the setting with the toughest restrictions - after November 29, primarily because of its high number of Covid cases.
The Prime Minister wouldn't say which colour other District Health Board regions would move into, with those decisions to be made closer to November 29.
However, the Prime Minister said the Government would move cautiously as it had done in the past.
That meant regions with low vaccination rates may likely expect to also be put into the red colour and its tougher restrictions.
These regions may be able to move to orange or green restrictions as their vaccination levels improved.
No region will go straight to the green setting.
What does the traffic light system mean for me if I'm vaccinated?
Under all traffic light settings, events, restaurants, bars, gyms and hairdressers are expected to be able to remain open.
This is dependent on the vaccine certificate to ensure only vaccinated people are using their services.
Only under the red setting do events and gyms become limited as they have to restrict the number of people in attendance to 100 or fewer, while hairdressers also have to maintain stricter public health measures.
What does the traffic light system mean for me if I'm not vaccinated?
If you are not vaccinated, the traffic light system will likely feel like a level 3 lockdown.
For those currently living outside of Auckland and enjoying level 2 freedoms that will mean life is about to get much more restricted.
Events, restaurants, hairdressers and cafes that use vaccine certificates will not be able to accept you into their stores.
And events, restaurants, hairdressers and cafes that do not use vaccine certificates will not be allowed to open at all under the red and orange settings - except to offer takeaway food only in the case of restaurants and cafes.
Gatherings at funerals and weddings will be limited to 10 people under the red setting and 50 people under the orange setting.
Under the green setting, events, gyms and restaurants will be able to open without vaccine certificates but there will be restrictions on how many people can be in attendance.
The Red, Orange, and Green:
Red
Red will be used when there is an outbreak and the health system is facing an unsustainable number of hospitalisations.
Unlike at current alert levels, everything will be allowed to remain open during an outbreak.
Hospitality will be open but patrons must be seated and separated. There will be a 100-person cap. Gyms and hairdressers will be allowed to remain open. These will all require a vaccine certificate.
Gatherings, including weddings, funerals, places of worship and marae, will be limited to 100 people based on 1m spacing if vaccination certificates are used. They will be limited to 10 people if they are not used.
People will still be encouraged to work from home.
For places where vaccination certificates are not used, settings similar to alert level 3 will apply, like contactless retail and hospitality.
Scanning in or record keeping continues to be required and masks are mandatory on flights, public transport, taxis, retail and public venues. It is recommended they are worn whenever leaving the house.
Orange
The orange level will indicate a limited outbreak, where there is an increasing risk to at-risk populations.
For employers that use vaccination certificates, there will be no cap on numbers but some public health measures such as distancing will still apply.
Schools are open, but there are public health measures.
Gatherings, churches and marae will be able to operate as normal if they use vaccination certificates.
Scanning in or record keeping continues to be required and masks are mandatory on flights, public transport, taxis, retail and public venues.
It is recommended that masks are worn whenever leaving the house.
Green
Green will mean effectively limited public health measures.
Green applies for when there is limited community transmission.
For businesses that use vaccination certificates, there are no limits on hospitality or gatherings.
For places where vaccination certificates are not used, restrictions like masking will be required and there will be caps of 100 people on hospitality and gatherings.
Scanning in or record keeping continues to be required and face coverings are mandatory on flights. People are encouraged to wear masks in indoor settings.
But what does this mean for employment?
If you are employed you will require a vaccination certificate to attend work under the traffic light system.
If a workplace does not want to require a vaccination certificate there will be strict limits on capacity and space.
The workplace may also be closed at the Orange and Red levels.
New legislation is set to be released in this month and come in to force in December 2021.
This new legislation will attempt to:
Clarify which roles must be performed by a vaccinated worker; and
Provide a health and safety risk assessment process for employers to determine whether they can require workers (who are not required by law to be performed by a vaccinated person) to be performed by a vaccinated person; and
It is reported this assessment will build on the WorkSafe health and safety risk assessment guidance provided to date.
You can read the WorkSafe guidance here:
Employers may need to afford paid leave to employees to get vaccinated; and
Introduce a mandatory four (4) week notice period for any employee whose employment is terminated because they are not vaccinated and their role must be performed by a vaccinated person.
All usual employment laws will apply and the unvaccinated may find themselves in a frustration of contract situation.
However, all usual employment laws will still apply when terminating an employee in this circumstance, including meeting all good faith obligations and exploring all reasonable redeployment alternatives prior to termination.
If an employer has implemented a mandatory vaccination policy in your workplace and you wish to discuss this matter, feel free to contact WFW.
LEVEL 3: DO I GO BACK TO WORK?
Auckland will move to alert level 3 on Tuesday at 11.59 PM for at least two weeks.
While a lower alert level comes with a few more freedoms, a number of restrictions are still in place to keep everyone safe during this time.
Can I go back to work?
At alert level 3, you must still work from home unless that is not possible.
People who return to work must follow public health guidance.
Because the Delta variant is more infectious and moves faster, additional precautions have been added to help businesses operate safely.
These include all employees and visitors having to wear face coverings, keeping record of people visiting through the Covid Tracer app or physical record, and maintaining a distance of two metres from others.
According to a Department of the Prime Minister and Cabinet spokeswoman, the full details of all public health measures businesses need to have in place to operate at level 3 will be published ahead of the alert level change at midnight on Tuesday.
How about schools and universities?
At alert level 3, all children should learn from home, but schools will be open for children whose parents or carers need to go to work.
Play centres and playgroups remain closed.
Schools should provide distance learning options for all tamariki and young people who are learning from home, including those who need to self-isolate and cannot attend school.
Schools may set up bubbles to help maintain physical distancing in the classroom and outside. Parents, carers and whānau who are visitors to the school should keep two metres apart from people outside their household.
All tertiary education providers should deliver their courses online. Where online learning is not an option, for example lab work or research, these can be accommodated if public health guidelines are able to be met.
Classes or workshops have to be limited to ten people per class. Each class is considered a ‘bubble’ and must not interact with any other student/staff bubbles of ten.
Student accommodation such as university halls of residence can remain open with physical distancing and extra hygiene measures.
Can restaurants and shops reopen?
Alert level 3 means you can once again dig into your favourite takeaways, but no restaurant dining just yet.
Cafes, restaurants and takeaways may open only for contactless pick-up, delivery or drive-through. Liquor stores can only offer contactless pick-up and delivery, if their liquor licence allows delivery.
Food delivery services, such as Delivereasy and Uber Eats, can also operate at alert level 3.
Businesses that require close physical contact, for example hairdressers, barbers, driving instructors, tattoo parlours, or nail salons, have to remain closed. Farmers’ markets, entertainment and tourist facilities, night clubs, and gyms cannot open. Home cleaners cannot work in clients’ homes.
Businesses that require close physical contact, for example hairdressers, barbers, or nail salons, have to be closed at alert level 3.
Businesses that require close physical contact, for example hairdressers, barbers, or nail salons, have to be closed at alert level 3.
During alert level 3, customers cannot go onto businesses’ premises, with the exception of supermarkets, dairies, butcheries, fishmongers, greengrocers, petrol stations, pharmacies or a permitted health service.
Customers must maintain physical distancing and wear masks, use hand sanitiser or wash hands regularly, and surfaces must be cleaned often.
Sale of non-food consumer products is allowed, but as with all businesses this must be done in a contactless way. Customers can pay online, over the phone or with contactless payment methods such as Paywave or Apple Pay. Delivery or pick-up must also be contactless.
What about building and construction?
Building and construction work can resume with the necessary safety measures in place, and plumbers, electricians and tradespeople can work on customers’ property provided the relevant public health measures are met.
Can I socialise with friends and whānau?
At alert level 3, you must maintain your household bubble. You cannot invite friends and extended family who are not in your bubble to your home.
You may expand your bubble slightly, but this is limited to close family and whānau, bringing in caregivers, or supporting isolated people. Remember to keep your bubble exclusive, and should someone in the bubble feel unwell, they must immediately self-isolate from everyone else.
You may expand your bubble slightly at alert level 3, but this is limited to close family and whānau, bringing in caregivers, or supporting isolated people.
You may expand your bubble slightly at alert level 3, but this is limited to close family and whānau, bringing in caregivers, or supporting isolated people.
Gatherings of up to ten people can go ahead, but only for wedding and civil union ceremonies, as well as funerals and tangihanga. Keep track of where you’ve been by scanning in with the Covid Tracer app.
Keep two metres away from people you do not live with, and avoid close physical contact such as hugging, hongi or harirū.
Unfortunately you will not be able to visit friends and whānau living in a rest home or aged care facility until alert level 2.
What are the rules around travel?
During alert level 3, you can travel within your local area, for example going to work or school, and you may use public transport to get there. Strict health and safety requirements still apply, including a requirement to wear a face covering on all forms of public transport.
Most bus services operate on a reduced schedule during alert level 3 and 4, so check the availability of you local service beforehand.
Is mandatory to wear a face covering on all public transport?
Yes.
Are there restrictions on travel?
At alert Level 3 travel between regions is heavily restricted.
For essential workers, travel in and out of an alert level 3 region is only allowed for specific reasons. If you need to travel to a region that is at a different alert level for work purposes, you will need to check that your reason for travel meets the criteria.
If not, you have to apply for a travel exemption through the Ministry of Business, Innovation and Employment (MBIE).
Are there are other safety restrictions?
During alert level 3 you cannot fly a manned aircraft, hunt in motorised vehicles, participate in water-based activities involving sailing boats, motorised boats or other craft like jet skis, or scuba dive.
You can hunt on both private and public conservation land, but stay within your region and stick to your bubble. You can only hunt on foot - using quad bikes, off-road bikes, helicopters and other motorised vehicles is not allowed. Do not go on an overnight hunting trip.
If you are out hunting, you still need to follow the local regulations.
You can fish from a wharf or the shore, but do not cast off the rocks or fish from a boat. Keep it local and go to your nearest fishing spot.
Travel is restricted across the Alert Level boundary
Personal travel across an Alert Level boundary is strictly limited?
These Alert Level boundaries are an important way to manage the risk of the virus spreading, so we keep our loved ones and communities safe.
You may only travel across the Alert Level boundary if that travel is permitted. You should make sure you carry acceptable evidence that you are permitted to cross the boundary.
For workers find advice here:
Business travel across Alert Level Boundaries — business.govt.nz
For more detailed advice find it here:
Personal travel across an Alert Level boundary | Unite against COVID-19 (covid19.govt.nz)
Do I have to take the vaccine to keep my job?
Employers have obligations under the Health and Safety at Work Act to assess risks in the workplace and to take all reasonably practicable steps to ensure the health and safety of workers and people coming into the work environment.
Recent Authority rulings provide that an employer can require only vaccinated workers to do certain work. This will be cased on a risk assessment.
Based on such a risk assessment it may be reasonable for an employer to determine that certain roles can only be performed by vaccinated workers.
Worksafe has issued guidelines on this issue which state:
“Businesses and services can also require a specific role be performed by a vaccinated person, if you have done a health and safety risk assessment to support this”.
Worksafe has suggested that employers consider two factors in carrying out this assessment;
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The likelihood of a worker being exposed to Covid-19 while performing the role; and
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The potential consequences of that exposure on others (for example, community spread).
There will be some sectors where the risk of exposure and/or the consequences of contracting and spreading Covid-19, justify an employer directing that only vaccinated employees can perform certain roles.
In such cases, the employer would need to consider redeployment and any other options for non-vaccinated staff, but if these alternatives could not reasonably be accommodated, dismissal may be justified.
Is your employer not paying you during Covid-19 Level Four/Level Three or in general?
If your employer:
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Hasn’t paid you your wages.
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or has paid you less than the minimum wage.
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or less than the amount stated in your employment agreement.
then your representative can apply to the Employment Relations Authority for it to order your employer to pay the money you’re owed.
You have to apply within six (6) years after the date when the wages should have been paid.
If you’ve been paid less than the minimum wage, you can also ask the Authority to make your employer pay a monetary penalty.
If the Authority does this, it can order the employer to pay some or all of the penalty to you.
Can I see my employer’s pay and time records?
Employers must keep wages and time records. If you (or someone you’ve authorised to represent you) ask to see those records for any period in the last six (6) years, your employer must provide a copy or allow you (or your representative) to see the relevant records.
Can I operate at close physical contact?
A business that requires close physical contact cannot operate during level 3.
The government recommends staff work from home if they can.
What are QR Codes for?
Business need to display a QR code and have an alternative contact tracing system. The government recommends the business makes sure that people either scan in or provide their contact details.
Who can open up at level 3?
Customers cannot come onto your premises — unless you are a supermarket, dairy, butcher, fishmonger, greengrocer, petrol station, pharmacy or permitted health service.
A business must legally must be contactless. Customers can pay online, over the phone or in a contactless way. What does contactless mean?
Delivery or pick-up legally must also be contactless.
Basic hygiene measures legally must be maintained. Physical distancing, handwashing and regularly cleaning surfaces.
Workers legally must stay home if they’re sick.
Workers legally must remain a minimum of 1 metre apart at all times where practical. The government recommends other measures, such as PPE including face coverings, be used where appropriate.
An employer or a business must legally meet all other health and safety obligations.
Where can I find out more?
Ministry of Health has advice for essential healthcare workers, border agencies, courts and tribunal staff, first responders and corrections staff:
COVID-19: Personal protective equipment for workers(external link) — Ministry of Health
Unite against COVID-19 has further information on safely doing business at Alert Level 3.
The government has guidelines for doing business at all levels, including level 3:
Doing business at Alert Level 3(external link) — covid19.govt.nz
Are my legal rights as a worker different during alert level 4?
No – your legal rights as a worker are the same during the COVID-19 pandemic as before. Employers still have to act in good faith and be fair and reasonable in any particular situation.
The big question during the pandemic is what will be ‘fair and reasonable’ for an employer to do during this time. For example, if your employer wants to restructure your job to change some of your work conditions (like your hours or pay rate) or make you redundant, the context of the pandemic will be relevant to what’s fair and reasonable.
Your rights and obligations as an employee come from several different places:
The first is the law. There are at least forty-nine (49) Acts of law that apply directly to workers and these cannot be contracted out of, meaning that if your employment agreement is inconsistent with them then the law supersedes your agreement.
The second is your employment agreement – the terms of your employment agreement (often referred to as a “contract”), which you should have in writing from your employer.
You have guaranteed minimum rights – the Employment Relations Act 2000 and various Acts that set out minimum conditions, such as the Minimum Wage Act and the Holidays Act – and also some basic terms and conditions that the courts see as implied in every employment agreement, regardless of what your agreement says.
What does “good faith” mean?
In the Employment Relations Act 2000 "Good faith” is a central part of employment law. This means employers, employees and unions must deal with each other openly, honestly and constructively. The duty of good faith applies when unions and employers are negotiating collective agreements and when existing employees are negotiating new individual agreements. But it also applies to the ongoing relationship between employers, employees and their unions after an agreement is made.
What is the Wage Subsidy Scheme?
The Wage Subsidy Scheme (WSS) allows eligible employers anywhere in the country to apply for the WSS if the employer expects a loss of 40 percent of revenue as a result of the Alert Level increase announced yesterday.
The WSS rates have been increased to reflect the increase in wage costs since the scheme was first used in March 2020.
Businesses will be eligible for $600 per week per full-time equivalent employee, and $359 per week per part-time employee.
The Wage Subsidy will be paid as a two-week lump sum.
Applications opened on Friday 20 August with the first payments usually available after three days.
A Resurgence Support Payment (RSP) is available if firms incur a loss of 30 percent of revenue as a result of the Alert Level increase.
The RSP is worth up to $1500 plus $400 per full-time equivalent employee, up to a maximum of 50 full-time employees (so up to a total of $21,500).
The Leave Support Scheme (LSS) provides a two-week lump sum payment of either $585.80 per week for full-time workers, or $350 per week for part-time workers, who must self-isolate and cannot work from home.
More information is available here:
https://www.business.govt.nz/.../financial-support-for.../
The Short-Term Absence Payment (STAP) provides a one-off (once per 30 days) $350 payment for workers who must miss work due to a COVID-19 test and cannot work from home. Further information about this payment is available on the MSD website here:
https://www.workandincome.govt.nz/.../short-term-absence.../
Does my employer have to pay me the full amount of the COVID-19 wage subsidy?
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.
What is the wage subsidy?
The COVID-19 wage subsidy is a payment made by the government to an employer towards their employees’ wages, so they can keep their staff during the pandemic. It is paid to businesses who have had (or predict they will have) a 40% drop in revenue due to COVID-19.
Your employer is able to apply for the wage subsidy from the Work and Income website from 18 August 2021
Will I be paid my normal wage under level 4?
If you are working from home, you have to be paid at the same rate outlined in your employment agreement.
If you cannot work from home and need to stay at home, your employer may be able to apply for the wage subsidy scheme if they meet the criteria.
Do I have to use my sick leave if I'm self-isolating?
If an employee is required to self-isolate, but they are not unwell, they would not be entitled to sick leave.
However, it is open to the employer to agree with the employee that they will be paid sick leave in this situation. Otherwise, unless the requirement to self-isolate is as a result of work, the leave would likely be unpaid.
Do I have to take annual leave if my employer has to shut?
No. An employer can only require an employee to use their annual leave entitlements with fourteen (14) days’ notice.
What if I don't feel safe to go to work, but my employer is an essential service and is open?
An employee can justifiably refuse to attend work if there is a serious and imminent risk to health and safety.
If the risk level is less than this, 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.
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.
What can I do if a customer or client won't wear a mask under level 4?
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.
Do I have to agree to variations in my agreement during lockdown?
No, normal employment laws apply. Any variations to terms and conditions of employment must be by agreement.
Do staff still accrue holidays during lockdown?
Yes.
I own my own workplace and have no employees - can I still go to work?
Under alert level 4, people may only leave home to work if they are in an essential service.
Mask wearing is now a public health requirement.
What can I do as an employer if a worker won't comply with the rules and is a risk to others?
If an employee refuses to comply with the rules (for example refuses to wear a mask), then disciplinary action could be taken. This could include paid suspension for the employee if the non-compliance continues.
Can I force employees to have a vaccine and wear masks?
Mask wearing is now a public health requirement, so staff in essential services can be required to wear a mask. Non-compliance could result in disciplinary action being justified.
Vaccines are now a compulsory requirement for the employees of employers which fall under the Government Covid-19 Order.
Otherwise an employer could not generally mandate vaccination unless it was a legitimate requirement of the role for health and safety reasons.
In either of these situations, if an employee refused to be vaccinated, this could potentially lead to termination of employment if the employer was unable to accommodate alternative working arrangements.
Can I make employees redundant during lockdown?
Yes, subject to there being a substantive justification, and the employer following a fair and reasonable process, including consulting with employees before making any decisions.
If the employer is receiving the wage subsidy, this is an additional factor to be considered in whether justification exists.
Businesses can apply for the wage subsidy from Friday and can access more money this year than last, to keep up with wage inflation.
Businesses that suffered a 40 per cent loss of revenue because of the return to level 4 could apply and receive $600 per full-time employee. Last year, $585 was available.
The wage subsidy will be available to all New Zealand businesses and self-employed people that meet eligibility criteria.
Businesses can also apply for the resurgence support payment for other business costs, if their revenue drops 30 per cent.