Coronavirus in the workplace

In recent weeks, CODVID-19 (coronavirus) has become a matter of global concern after the outbreak was first reported in Wuhan, China, and was subsequently declared by the World Health Organization to be a global health emergency.

The impact on New Zealand has already been felt particularly in the education, export and tourism industries. In the forestry sector, around 30% of forestry workers are currently unable to work due to supply chain disruption. The government has also created an $11 million package to offset the impact of the virus to the tourism sector.

While there have been no confirmed cases of coronavirus in New Zealand yet, in an effort to protect New Zealanders and other Pacific countries, the government has closed New Zealand’s borders to foreign travellers who have left from or transitioned through mainland China. New Zealand citizens and permanent residents returning to New Zealand as well as their immediate family members are able to return but are required to self-isolate for 14 days upon their return.

The Ministry of Health has offered some guidance on the meaning of self-isolation, which involves taking common-sense steps to avoid close contact with other people. The Ministry has defined ‘close contact’ as being closer than 1 metre to another person for more than 15 minutes. The Ministry recommends that those self-isolating stay away from situations where close contact may occur such as school, sports gatherings, school and work.

Implications for employment

Infectious diseases, such as coronavirus, are a workplace hazard. Employers have a duty under the Health and Safety at Work Act 2015 to eliminate or mitigate risks to health and safety as far as is reasonably practicable. Employees are also under an obligation to uphold the health and safety of others at work, which would include communicating with the employer that they have travelled to or through China and discussing the best response.

In taking action, employers must take all practicable steps to mitigate the risk of sickness to workers and ensure that they act reasonably and fairly towards any workers who they deem, by their potential exposure to the coronavirus, to be a workplace hazard.

Practically, an employer’s ‘reasonably practicable’ response to the hazard and what is fair and reasonable for the individual worker will be driven by context, depending on the worker’s employment agreement and employer policies.

When making decisions, employers should be careful to be informed by guidance provided by the Ministry of Health and other official information. Employers should not seek to remove workers of specific ethnicities from the workplace for fear they have contracted the virus. This would constitute discrimination, and the worker would be entitled to make a personal grievance claim with the Employment Relations Authority.

What happens to workers absent from work?

Employers should not arbitrarily assume that time away from work will be either paid or unpaid. The first port of call is to the contents of the worker’s employment agreement. If the employment agreement contains an applicable clause, this must be followed.

If the situation is not covered by the employment agreement, how and why a worker self-isolates will be important. Here are a number of scenarios:

1. Worker or dependent sick

If the worker is actually sick or is caring for someone who is sick, they will be covered by sick leave as per the Holidays Act 2003 and any additional provisions in their employment agreement.

2. Worker voluntarily self-isolates

If the worker is not actually sick but voluntarily follows the 14-day self-isolation guidelines propounded by the Ministry of Health, some arrangement could be made for the worker to work from home. If this is not possible, the employer could agree for the worker to use sick leave or annual leave.

3. Worker non-voluntarily self-isolates

If the worker is not sick but is required by their employer to stay away from work as a health and safety measure, the worker should be paid. In accordance with the employment agreement, the employer may require that the worker take annual leave. If no provisions for this exist, the employee should be paid.

4. Worker refuses work due to health and safety concern

Under the Health and Safety at Work Act 2015, a worker could refuse to come to work if they have a genuine fear of contracting coronavirus in the workplace. The worker should discuss this issue with their employer and whether a solution such as working from home may be possible.

Opportunity to review policies

Given the possibility of an outbreak occurring in New Zealand and the fact that other health risks have and will likely affect the workplace again, employers should consider reviewing their health and safety obligations and relevant policies to address coronavirus and other similar scenarios.

If an outbreak does occur, Business NZ has helpfully complied a checklist for managing coronavirus in the workplace.

Business NZ suggests that employers should do the following:

• Notify staff of health and safety requirements. This includes reminding staff to wash hands regularly, cough and sneeze hygienically and maintain social distance (stand at least 1 metre away from other people).
• Provide hand-washing and waste-disposal facilities.
• Provide a clean, well-ventilated workplace by ensuring regular cleaning and disinfecting of work spaces used daily.
• Ensure protective gear is provided if required, following official advice and providing training on how to use and dispose of the protective gear.
• Organise workflow to reduce risk of infection by asking staff to work from home, postponing non-essential gatherings, dealing with clients and suppliers by phone or email and ventilating the workplace between shifts.
• Monitor workplace health through setting up a system in which staff can report suspected cases of infection.

What to do if there is suspected infection:

• A person with suspected infection should be told to leave work immediately and to contact a health professional.
• Identify the people that person has been in contact with, tell them they have been in contact with suspected infection and ask them to go home immediately and stay home until advised otherwise.
• Thoroughly clean and disinfect the person’s work area.

For further information, contact your employment lawyers at Bell & Co on (04) 499 4014.