New Zealand has now moved to the Covid-19 Protection Framework, otherwise known as the traffic light system. Given this change, I thought it timely to provide general guidance for businesses and their employees about employment rights and responsibilities in the current Covid- 19 workplace environment.

The key concept is that employment and health and safety laws still apply in the traffic light system. Employers cannot reduce their employees’ legal minimum employment rights. This includes the minimum wage, annual and sick leave and 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 or pay.

Employers and employees need to work together to contain the spread of Covid-19 and keep each other safe. That means that the normal obligations to act in good faith, be open, honest and communicative with each other are more important than ever.

Varying working arrangements
An employer cannot unilaterally alter employees’ terms and conditions of employment. If there is an existing employment agreement, an employer can only change it if the employee agrees. An employer may want to change to an employee’s employment arrangements due to their financial circumstances.

When making changes to their terms and conditions of employment, including redundancy or reduced hours or wages, an employer must follow certain processes which include:

• Undertaking 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).

• Paying redundancy compensation if it’s noted in the employee’s employment agreement or has been negotiated with the employee and agreed by both parties.

• Recording in writing any agreed changes to the terms and conditions of employment.

Returning to the workplace
Employers need to consider public health guidance from the Ministry of Health and assess whether work performed by their business is covered under the current Government Public Health order. The general rule is: if the traffic light setting you are in allows it, and in the absence of an agreement to alternative working arrangements, the employer can require employees to return to the workplace.

Employers should discuss any return to work with their employees in good faith first. The return must be subject to conditions, such as the employer following health and safety rules and any agreements that were made between the parties.

Unvaccinated workers
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 determine this. Government Public Health Orders can also require that certain types of work must be done by vaccinated workers, such as border workers, health and disability sector workers and certain workers in the education sector.

Annual leave
An employer can only require an employee to take annual leave if the employee agrees 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. An employer can agree to a request for advanced annual leave, but they don’t have to, and an employer cannot force or make an employee take advanced annual leave. An employer cannot make an employee take sick leave unless they are sick.

Employees & self-isolation If a worker is sick with Covid-19 or required to self-isolate, the first consideration for an employer should be to look after their workers, contain Covid- 19 and protect public health. Employers should not knowingly allow workers to come to a workplace when they are sick with Covid-19 or required to self-isolate under public health guidelines. If they do, they are likely to be in breach of their duties under the Health and Safety at Work Act 2015.

Employers and employees can access the Covid-19 financial support tool at covid19.govt.nz to see what support they are eligible for if their work is impacted by Covid-19. Employees can also 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.

The Employment New Zealand website is updated regularly with the latest Covid- 19 information, and further guidance can be found at employment.govt.nz.

Please note that this article is not a substitute for legal advice, and if you have a particular matter that needs to be addressed, you should consult a lawyer. Danielle Beston is a barrister who specialises in transport law. Contact her on (09) 379 7658 or 021 326 642