Alert Level 2 and your Business

As of Thursday, 14 May 2020 we are at Alert Level 2. This means that even more businesses will be allowed to resume operations.  People are now allowed to pop their bubbles and there will be more people out and about. As a country we will move towards a new normal.  But what does this mean for your business?

HEALTH AND SAFETY

You still have your usual obligations under the Health and Safety at Work Act 2015. You must consider the usual risks to health and safety, as well the additional risks of exposure to and spread of COVID-19.  Additionally you need to comply with the Ministry of Health requirements and the requirements of your particular industry.

You should involve their employees in discussions about how they will take steps to minimise these risks.  This ensures that your employees understand what steps the employer is taking to reduce these risks and you have the added benefit of extra ideas and input.

Good hygiene practices and maintaining social distancing are paramount. You will need to ensure that:

  • You have a robust cleaning regimen;
  • “High-touch points” such as EFTPOS machines, door handles and printers/photocopiers etc., are wiped down regularly;
  • Social distancing is maintained – in a “controlled” environment such as a workplace at least a 1m gap is acceptable; in an “uncontrolled” environment such as out in public, at least a 2m gap is needed; in a “close proximity” environment where 1m distancing is not possible, extra measures should be put in place such as use of PPE; and
  • You have a good contact-tracing system e.g. pen/paper registers for staff/visitors/customers or apps where a QR code can be scanned with a mobile phone.

Travelling in Vehicles for Work

WorkSafe has yet to provide specific guidance on travelling in vehicles for work at Alert Level 2, however does recommend one person per vehicle to maintain social distancing.

If this is not possible you should consider the following:

  • Social distancing as much as possible – have people seated at least 1m apart e.g. driver and passenger sitting in left rear seat; if this is not possible, then people should wear PPE such as masks;
  • Good hygiene – wipe down door handles, steering wheels etc. before and after use of the vehicle;
  • Airflow – have the air-conditioning set to fresh air rather than recycled air.

For more information on Health and Safety at Level 2 visit: https://worksafe.govt.nz/managing-health-and-safety/novel-coronavirus-covid/operating-safely-at-alert-level-2-what-you-need-to-think-about/

WorkSafe also has guidance for specific industries here: https://worksafe.govt.nz/managing-health-and-safety/novel-coronavirus-covid/

Customers

Under Alert Level 2 businesses are able to resume their face-to-face operations with customers.  Businesses that engage with customers must have the following measures in place:

  • Good contact registers or contact tracing records;
  • They must maintain physical distancing of 1m between groups of customers or 2m if it is not possible to keep contact tracing records;
  • No groups larger than 10 people; and
  • A two-hour time limit for customers to be on the premises.

The Prime Minister has emphasised the importance of the three S’s for hospitality businesses such as cafes, restaurants and bars:

  • Seated;
  • Separated;
  • Single-server.

Patrons must be seated at all times while they are dining, tables must be separated by a gap of at least 1m and each table is to have only one server.

EMPLOYMENT RELATIONSHIPS

Employers must remember that normal employment law and obligations still apply in these circumstances. That includes the duty of good faith and the duty to adhere to the terms of an employment agreement. We appreciate that moving to a new level will involve additional considerations regarding employees. 

What can I do if an employee refuses to come to work?

  • You should first discuss with your employee the reasons they refuse to come to work.  If they are concerned about returning to work because of the possible risk of being exposed to or spreading COVID-19, you can discuss with them the steps that you are taking to reduce or minimise that risk and that may allay their concerns. Remember that stress is a workplace risk that needs to be managed as well.
  • If, after discussing the employee’s concerns, it appears that there are no reasonable grounds for them to refuse to attend work then you will need to write to the employee and instruct them to return to work. If they continue to refuse to attend work, you may need to start a disciplinary process.  We strongly advise that if you are in this situation you seek legal advice.

What about high risk employees or employees who have high risk people in their households?

  • Firstly you should assess whether there is a need for that person to actually return to the workplace.
  • If they are needed at work, assess whether it is possible for them to work from home and if so, you should not require them to come to the workplace.
  • If working from home is not possible and the person refuses to come to work then you should enter discussions with them about taking paid or unpaid leave. If you are unsure about leave entitlements we suggest you seek legal advice.

What if I still can’t afford to pay my employees 100% of their salary/wages even if they return to work?

  • Employees should be paid as normal for each hour that they work. However, we understand that this just may not be possible yet for many businesses.
  • The COVID-19 Wage Subsidy provides payment for employee salary/wages for 12 weeks. Depending on when you applied for the subsidy, this period continue into Alert Level 2. During this time you must endeavour to pay employees at least 80% of their usual pay, or if this is not possible, the value of the subsidy.
  • If employees return to work and you are still unable to pay their full remuneration, you will need to discuss this with them. Consider negotiating for them to work reduced hours for a period, if you have not done so already.
  • Remember to record any agreements changing remuneration/hours/other working conditions in writing.
  • Note: The COVID-19 Wage Subsidy Scheme has been extended:
  • You need to show an actual or projected revenue loss of at least 50% for the 30 days before you apply, compared to the closest period in 2019;
    • It will cover a further 8 weeks of remuneration at the same rates as the original wage subsidy;
    • Your obligations under the COVID-19 Wage Subsidy Scheme will continue to apply;
    • You cannot apply for an extension until the relevant employee’s original 12-week period has finished;
    • Applications open from 10 June 2020.

Can I undertake a restructure and make some staff redundant in order to save some money?

  • If you applied for the Wage Subsidy after 4pm on 27 March 2020, you will be in breach of your obligations under this scheme if you make any staff named in your subsidy application redundant during the 12-week period for the subsidy. If you applied before 4pm on 27 March 2020, you must still make your best endeavours to retain the staff named in your subsidy application.
  • Once the 12-week period is finished, you will not be in breach of your subsidy scheme obligations if you make staff redundant.
  • We advise that you seek legal advice prior to commencing any restructure process. Even if the employee is still within the 12-week period we may still be able to assist.

We understand that there is a lot to think about as we move through the Alert Levels. Saunders & Co Lawyers are available by phone and email to provide legal advice and guidance on a range of matters. For more information and specific legal advice on your employment relations and health and safety obligations please contact the employment team.