Coronavirus and the Law

Coronavirus and the Law

COVID-19 Employment FAQs

 Overview of employee rights at level 4 flowchart

workers rights covid 19 flowchart Download and share the flowchart here.

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.

For more information on the Wage Subsidy, see below, Getting paid under the COVID-19 Wage Subsidy.

Can I return to work at alert level 2?

At alert level 2, businesses can open but they legally must follow public health rules, including record keeping. All workers should keep at least 1 metre apart, where possible.

Workplaces should have a COVID-19 safety plan that covers things like physical distancing, PPE, contact tracing and hygiene/cleaning practices. The plan must be communicated to all staff and applies not just to employees, but also to other people you have contact with like contractors, couriers and volunteers.

This will depend on why you cannot work.

If you cannot work because you or one of your dependents has COVID-19 or must self-isolate you qualify for payments under the Leave Support Scheme.

If you cannot work because of your health vulnerabilities or those of your dependents, you can receive payments under the Leave Support Scheme.

If you cannot work because you or one of your dependents are sick (due to another illness), you should be paid sick leave.

If you are waiting for a test result and you cannot work from home, you can receive payments under the COVID-19 Short-term Absence Payment.

What is the COVID-19 Resurgence Support Payment?

The COVID-19 Resurgence Support Payment (RSP) is a payment to help support businesses or organisations during a COVID-19 alert level increase to level 2 or higher. It is paid to businesses who have had (or predict they will have) a 30% drop in revenue over a 7 day period due to the COVID-19 alert level increase. When the RSP is activated, eligible businesses and organisations can apply to receive the lesser of:

  • $1500 plus $400 for every full-time employee, up to a maximum of 50 employees
  • Four times the actual revenue decline experienced by the business.

Charities, NGOs, sole traders and self-employed contractors are eligible to apply for the RSP, provided they meet the criteria, including the revenue criteria and are 18 years old at the time of applying.

For information on the RSP and the eligibility criteria, see the IRD website, here.

What if I am on a casual employment agreement?

Casual workers aren’t entitled to ongoing work, so there is no guarantee that you will continue to be employed. But your employer can still apply for the wage subsidy and pay you accordingly if they meet the eligibility criteria.
You could argue that your employer should, as a matter of good faith, make a subsidy application on behalf of their casual staff, since it costs them nothing to do so.

Can I be made to use my annual leave?

No. The purpose of annual leave under the Holidays Act is to allow an opportunity for rest and recreation. Requiring a worker to take annual leave in order to reduce costs associated with COVID-19 is inconsistent with that purpose and is highly likely to be unlawful.

Even if it were legal, employers have to give 14 days’ notice of annual leave and can’t make employees take annual leave in advance. One of the conditions of the government wage subsidy is that employers will not unlawfully make employees take annual leave during the subsidy period. For more information on annual leave, see the Community Law Manual, here.

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.

Click here for information about redundancies and restructuring.

Essential services

Is my workplace an “essential business”?

“Essential businesses” are “businesses that are essential to the provision of the necessities of life and those businesses that support them”.

Visit the government’s COVID-19 website to see a list of businesses that are “essential” here.

Do I have to work if my workplace is an “essential business”?

You may have good reason not to go to work if you don’t think your workplace has adequate health and safety measures to keep you safe from COVID-19. You have the right to refuse to carry out work if you believe that doing the work would expose you, or anyone else, to a serious risk to health or safety. Click here for more information.

If you think your workplace is unsafe, you should talk to your health and safety officer or committee, and you can also notify Worksafe. Click here for more information.

If I’m an essential worker with kids, what childcare support can I get?

The government is again funding home-based childcare services for essential workers who need them. You can find childcare providers for children aged up to 14, here.

These providers may offer options for childcare under the scheme either in the child’s home, or in the carer’s home. For the purposes of providing care to children of essential workers, the carer will be classified as an essential worker.

Changes to your job: Restructuring and redundancies

Can my employer change my pay or my hours of work without my agreement?

Your employer can’t change your pay, hours of work or other employment conditions unless:

  • you agree to the change, or
  • your employer restructures your position after consulting with you in a fair and reasonable way.

You’re entitled to your full pay unless and until one of those things happens.

If your employer does try to restructure your role to change your pay or conditions or make you redundant, they have to give you reasons for this and they have to consult with you in good faith. That includes giving you the chance to make counter-proposals, and genuinely considering with an open mind any counter-proposals you do make. You could suggest, for example, that any changes to your hours or pay are temporary.

Community Law provides a template letter that you can use for negotiating with your employer. Download this “Employee negotiation letter” from our Legal Letters page, complete it with your own information, and then send it to your employer.

If they don’t consult properly,  you may be able to challenge any changes to your employment conditions through a personal grievance. You can also challenge it through a personal grievance if the redundancy isn’t justified, but this is usually harder to prove.

For example, you may be able to challenge a redundancy or other restructuring if your employer qualified for the COVID-19 Wage Subsidy but didn’t apply for it. On the other hand, if your employer’s business hasn’t been affected enough by COVID-19 to claim the Subsidy, it will be harder for them to justify changing your employment conditions.

My employer made me redundant, effective immediately – is this allowed?

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. (Click here for more information about redundancies and restructuring.)

The consultation process usually takes around two 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.

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. Your local Community Law Centre or your union will be able to advise you.

If I’m made redundant, does my employer have to pay me compensation?

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 I lose my job, is there any financial relief available to me?

The COVID-19 Income Relief Payment is no longer available. The final day of payment was 4 February 2021. However, if you lose your job (including self-employment) or need help with costs you could be eligible for the usual range of benefits with Work and Income (click here for more information).

You could also read more about receiving a benefit in the Community Law Manual, Dealing with Work and Income chapter here.

Getting paid under the COVID-19 Wage subsidy

What is the Wage Subsidy?

The COVID-19 Wage Subsidy is a payment made by the government to an employer to go towards their employees’ wages, so they can keep their staff during the pandemic. The scheme first ran from March 2020.

There have been four different phases of the scheme:

  • The first Wage Subsidy scheme – this ran from March to 10 June 2020.
  • The Wage Subsidy Extension – the scheme was extended so that it keeps going until 1 September 2020.
  • The Resurgence Wage Subsidy – when the virus flared up again in the North Island in August 2020, the government brought in another two-week extension. Employers could apply for this any time between 21 August and 3 September, with the subsidy running for two weeks from the date when the employer applies.
  • The current Wage Subsidy scheme started 17 August 2021 and is still open. Your employer is able to apply for the wage subsidy from the Work and Income website, here.

Does my employer have to pay me my full pay while they’re getting the Wage Subsidy?

The conditions of the government Wage Subsidy scheme require your employer to try their hardest to pay you at least 80% of your normal wages. If you think that they are not doing this, you should raise this with your employer.

Before your employer can change your pay, they must either:

  • have your agreement to the change, or
  • undertake a restructure of your position with appropriate consultation.

If your employer hasn’t consulted with you properly, or if 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 is asking you to agree to something that doesn’t seem right, you should seek free legal advice from your nearest Community Law Centre or if you are a member of a union then you should talk to your union before agreeing to anything.

Does my employer have to pay me the full amount of the COVID-19 Wage Subsidy?

If an employer can’t afford to pay 80% of your wages – because, for example, they have no money coming into their business – they must pay you the full amount of the subsidy unless this is more than your usual wages.

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.

Click here for more details.

How can I find out if my employer applied for the COVID-19 Wage Subsidy?

You can search your employer’s name on Work and Income’s search tool to see if they applied for the Wage Subsidy, here. The name you search for using the tool will likely be based on your employer’s name as it appears on your payslip or bank statement.

If your employer has received the subsidy and you don’t know if you were included in their application, you can ask to find out by filling out this form.

What did my employer have to do if they received the Wage Subsidy?

When applying for the Wage Subsidy, all employers agreed to conditions, including:

  • Employers must pass on the full subsidy received for each named employee as wages. If a person’s normal wages or salary are less than the subsidy rate, they can be paid their normal wages or salary
  • Employers cannot require employees to use their annual holidays or sick leave, leave without pay, or other leave entitlements
  • Receiving a wage subsidy does not change the terms and conditions in the employment agreement. Being asked to use leave entitlements or make any changes to the terms in your employment agreement cannot be done unless the changes have been discussed and agreed with you in good faith and are in writing.

How do I make a complaint about my employer?

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. You can find more information on making a complaint and fill out a complaint form here.

You can also make a complaint if you believe your employer forced you take leave without your agreement or changed your employment conditions without your agreement.

 

Last updated: 10 September 2021

 

 

 

 

 

 

 

 

 

 

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Check out Frequently Asked Questions and Answers related to COVID-19 on our website here.

Community Law Centres across Aotearoa are operating remotely. Please contact them via the phone number or email displayed on the Centre’s page.

Find the contact details of your nearest Community Law Centre here.

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