Coronavirus and the Law

Coronavirus and the Law

FAQs for Employment

Are my legal rights as a worker different during the COVID-19 pandemic?

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 particular context of the pandemic will be relevant to what’s fair and reasonable.

Click here for information about redundancies and restructuring.

Returning to work under Level 1

Do I have to return to work under Level 1?

Under Level 1, all businesses can return to operating as normal with appropriate health practices in place.  Some businesses may still allow you to work from home. The main public health requirements for workplaces are:

  • asking everyone with cold or flu-like symptoms to stay away from the workplace
  • Maintaining hygiene measures such as handwashing, and regularly disinfecting shared surfaces.

If you’re considered to be at risk of severe illness from COVID-19, you should talk to your employer about doing a risk assessment at your work to see how great the risk to you is and how it might be reduced. If the workplace can’t be made safe for you, you should work from home.

If you can’t work from home, your employer can apply for financial support under the government’s Leave Support Scheme so that they can keep paying you.

See below “Can I refuse to come to work during Level 1 because I have health vulnerabilities?”

You can get payments through your employer under the Leave Support Scheme if you can’t work because you or one of your children:

  • is considered to be at risk of severe illness from COVID-19 (for example, a weakened immune system, a heart condition, or diabetes, and pregnant women in their 3rd trimester), or
  • has COVID-19 or has to self-isolate after being in contact with someone with the virus.

The Leave Support Scheme is explained in more detail below under “Keeping safe at work: Health and safety rules” / “Will I get paid if I have health vulnerabilities and can’t go to work?”.

If you can’t work because you or one of your children is sick with something other than COVID-19, you should be paid sick leave as normal.

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 qualifies for the COVID-19 Wage Subsidy but hasn’t applied 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.

See below “Getting paid under the COVID-19 Wage Subsidy” for more information.

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 is eligible for the Wage Subsidy but hasn’t applied 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?

If you lose your job (including self-employment) from 1 March 2020 to 30 October 2020 due to COVID-19, you may be eligible for the COVID-19 Income Relief Payment. You can find out more information here on the Work and Income website.

Available from 8 June 2020.

What if I’m on a casual employment agreement?

Casual workers aren’t entitled to ongoing work, so there’s no guarantee you will continue to be employed. But your employer can still apply for the government COVID-19 Wage Subsidy to help them pay for their casual workers and keep giving them work.

You could even argue that an employer should apply for the subsidy for their casual staff, as part of their legal duty to act in good faith towards them, since it costs your employer nothing to do this.

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 to 10 June 2020, but has been extended so that it keeps going until 1 September 2020.

To qualify under the first Wage Subsidy scheme (from March to June 2020), a business must have had, or expected to have, a 30% drop in revenue because of COVID-19. The subsidy runs for 12 weeks and pays $585.80 (before tax) a week for full-time employees and $350.00 (before tax) a week for part-timers.

“Full-time” is 20 hours or more per week and “part-time” is less than 20 hours per week.

The Wage Subsidy Extension scheme runs for eight weeks from 10 June 2020 to 1 September 2020. To qualify for it, the employer must have had, or expect to have, a 50% drop in revenue for the 30 days before they apply, compared to the closest period last year. The amounts paid are the same as under the first Wage Subsidy scheme (see above).

How can I find out if my employer has 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’ve applied for the Wage Subsidy. 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.

Can all employers apply for the COVID-19 subsidies?

Government departments and other public-sector organisations don’t qualify for the Wage Subsidy or the Leave Support Scheme (which is for employees who aren’t able to work because they have health conditions that make them more vulnerable to COVID-19).

This includes:

  • all departments and ministries like Oranga Tamariki/Ministry for Children
  • all ‘Crown entities’, which is the name for a wide range of public-sector agencies like the Accident Compensation Corporation and the NZ Transport Agency, and also all District Health Boards (DHBs), which employ all the people who work in the public health system
  • schools, universities and other tertiary education institutions.

Those organisations should all follow the State Services Commission’s guidelines, which explain the types of leave arrangements that should be considered when people can’t work.

Can my employer make me use my annual leave so they can get the Wage Subsidy?

No. The purpose of your annual leave under the Holidays Act is to allow you an opportunity for rest and recreation. Requiring a worker to take annual leave in order to close down business operations and reduce costs during the COVID-19 pandemic is inconsistent with that purpose and is likely to be illegal.

Even if it were legal to make you use your annual leave for that purpose, your employer would still have to give your 14 days’ advance notice of this.

Your employer also can’t make you take annual leave in advance, that is, before you’ve accrued it.

One of the conditions of the government Wage Subsidy is that employers will not illegally make employees take annual leave during the subsidy period.

Can I take annual leave while my wages are being subsidised?

Yes, if you and your employer agree to this.

When you’re taking annual leave, you must be paid the higher of the following amounts:

  • your normal pay as at the day you go on leave, or
  • your average pay over the last 12 months.

If your pay has been reduced as a result of COVID-19, then your 12-month average will probably be the higher amount.

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.

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).

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

  • have your agreement to the change, or
  • formally restructure your position, including consulting with you in a fair and genuine way.

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.

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

Your employer must pay you the full amount of the subsidy they receive, unless the subsidy amount is more than your usual income.

If the subsidy is more than your usual income, 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.

Can my employer make me redundant while they’re receiving the Wage Subsidy for me?

No, this is a breach of the employer’s obligations under the Wage Subsidy scheme.

Keeping safe at work: Health and safety rules

What health and safety measures should my employer be taking?

As always, your employer is responsible for the health and safety of all employees (click here for more information). COVID-19 is easy to catch and spread, so there are special requirements that employers have to meet if they’re operating during the pandemic.

If you think your workplace is unsafe, you should talk to the health and safety officer or committee in your workplace. You can also notify Worksafe, the government agency responsible for enforcing health and safety laws.

Click here for more information from WorkSafe about the COVID-19 pandemic.

How do I raise COVID-19 health and safety concerns with my employer?

You should first raise your health and safety concerns with your manager and your workplace health and safety representative and tell them why you think the work isn’t allowed under the COVID-19 restrictions or what the hazards are.

If your concerns aren’t addressed, contact your union or Worksafe.

Can I refuse to work or perform certain tasks if I think my employer isn’t keeping me safe from COVID-19?

You can refuse in certain limited situations.

The general rule is you must obey your employer’s lawful and reasonable instructions. However, you’re entitled to refuse to do anything that presents a serious risk to your, or someone else’s, health and safety.

You probably won’t have reasonable grounds to refuse to work if your employer is following the public health guidelines for the current Alert Level, such as contact tracing records and hygiene/cleaning protocols.

Say for example, you have concerns about hygiene or cleaning practices not being put in place or properly managed in your workplace. You should first bring this to your employer’s and your health and safety representative’s attention. If it’s not resolved, and if you’re in ‘imminent and immediate danger’, you’re entitled to refuse to work or do that particular task until it’s safe.

If your concerns aren’t addressed, contact your union or Worksafe.

Can I refuse to come to work during Level 1 because I have health vulnerabilities?

Yes. The Ministry of Health says that people who are at risk of severe illness from COVID-19 because of certain health conditions need to take extra precautions. This includes people with a weakened immune system (“immuno-compromised”), liver disease, cancer, kidney disease, heart disease, and diabetes, and also pregnant women in their 3rd trimester). The Ministry of Health advises you to first talk to your employer about doing a risk assessment in their workplace to look at what the risk is for you and how it might be reduced. If the workplace can’t be made safe for you then you should see if you can work from home. You may need to show your employer a note from your doctor as proof of your health condition.

If you can’t work from home, your employer will be able to apply for financial support under the government’s Leave Support Scheme to enable them to keep paying you while you’re not working – see below.

Your employer must act fairly and reasonably and deal with you in good faith They also have a duty to keep you safe at work. They can’t disadvantage you or treat you unfairly because you have  a health condition – if they do this you may be able to bring a personal grievance on the grounds of unjustifiable disadvantage or discrimination or make a complaint uner the Human Rights Act.

Private-sector employers can apply under the COVID-19 Leave Support Scheme for financial support to pay workers who can’t work because they or someone in their household is at risk of severe illness from COVID-19. (This scheme is also for workers who can’t work because they or someone in their household have COVID-19 or are self-isolating).

The Leave Support Scheme began on 28 April 2020, replacing the old Essential Workers Leave Support Scheme. The new Leave Support Scheme covers all businesses, not just essential businesses, and at all of the Alert Levels, if the business has workers who meet the qualifying criteria.

As under the Wage Subsidy Scheme, to qualify your employer must have had either a 30% drop in their revenue or their ability to support their employees must have been reduced by COVID-19 and the related restrictions.

The support payment covers 80% of your usual salary, up to a maximum of $585.80 for full-time workers (more than 20 hours a week) or $350.00 for part-time (less than 20 hours a week.) The scheme is for four weeks and can be renewed (your employer should reapply in the 4th week if you want it to be renewed).

Your employer can’t claim the Wage Subsidy and the Leave Support Scheme for the same employee at the same time.

The Leave Support Scheme doesn’t cover employers in the state sector.

Am I allowed to come to work if my health is vulnerable?

Maybe. You’ll need to tell your employer about your health status and they’ll then need to consider whether they can put all the appropriate precautions in place to keep you safe, taking into account the Ministry of Health guidelines If it’s not reasonable to expect them to make the necessary changes, they don’t have to make them.

Your employer might consider options like giving you different work tasks that are safer, or shifting you to work in a different part of the business, or staggering the start and end times of shifts, or letting you work from home.

If your employer decides it’s unreasonable to put in the necessary precautions to keep you safe, you’ll have to stay off work. In that case they can apply under the government Leave Support Scheme for financial support so they can continue to pay you while you’re not working.

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

Most Community Law Centres have returned to their normal face-to-face free legal services during Level 1.  Find the contact details of your nearest Community Law Centre here

You will also find out useful information on our Community Law Manual Facebook page.

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