Vaccinations

There are broadly three categories of workers when it comes to COVID-19 vaccinations.

The first is those who must be vaccinated pursuant to the COVID-19 Public Health Response (Vaccinations) Order 2021. Employers of these workers (MIQ and frontline staff) can require workers to be vaccinated in accordance with the Order. A handful of workers in these facilities who refused vaccination have already lost their jobs, and some are taking a case to the Employment Relations Authority claiming this is unlawful.

The second category is those who can be required to be vaccinated by their employer on health and safety grounds. This may include high risk workplaces such as rest homes. In order to do so, these employers must first undertake a health and safety risk assessment in consultation with their workers.

Where an employee who performs a role in which they can lawfully be required to be vaccinated, refuses vaccination, there are a number of steps their employer should take prior to termination. These will depend on the circumstances, including the nature of the role and industry, and at a minimum will include consultation and consideration of redeployment options.

The third category is everyone else. It is likely that lawyers and law firms fall into this category. Employers of these workers cannot require vaccination for current employees, but can certainly encourage it.

A number of employers have started incentivising vaccination, from providing paid time off to get vaccinated, through to paying bonuses on proof of vaccination, offering a day of special leave or going into a lotto-like weekly draw for cash or grocery vouchers. While, for the vast majority, incentives will have the desired effect of encouraging vaccination, we are aware of some instances where employees have raised discrimination and/or disadvantage questions, on behalf of those who cannot be vaccinated for a reason which falls within a prohibited ground of discrimination, including religious or medical reasons. Employers therefore need to take care with how they offer and promote any incentivisation.

In practice, many law firms will end up with a "mixed-vaccination-status workforce". This will come with its own challenges, such as vaccinated workers refusing to work alongside unvaccinated workers, or vaccinated workers who seek alternative working arrangements to avoid exposure to unvaccinated workers. Employers should start thinking now about how they might tackle these issues. It is important to remember that vaccination is only one tool in the toolbox to fight COVID-19. Other measures, such as distancing, PPE, enhanced hygiene and cleaning controls, and contact tracing also remain extremely important in keeping people safe.

Pay

Paying employees when they are not going to work (or working from home) due to lockdown restrictions has become a controversial topic, with case law making it murkier.

We know employment law stays the same in lockdown: “… the pandemic, and the Government’s response, did not act to suspend employee rights or employer obligations” (Gate Gourmet NZ Ltd & Ors v Sandhu & Ors [2020] NZEmpC 237 at [23]). But opinions differ over whether employers must pay employees who cannot work due to lockdown restrictions. Many refer to an underlying principle where an employee who remains ‘ready, willing and able’ to work is entitled to be paid in accordance with their employment agreement (unless agreed otherwise). Others simply say, “No work? No pay.”

A majority of the Employment Court has held that the Minimum Wage Act 1983 is not engaged when an employee stays at home so does not actually work (Gate Gourmet at [45]). Put another way, no physical “work” = no entitlement to minimum wage. However, this case is on appeal to the Court of Appeal.  Notably, in Her Honour’s dissenting judgement, Chief Judge Inglis of the Employment Court referred to a “… widely understood common law rule that, where there are agreed hours of work cancelled by the employer, wages remain “payable” provided that the employee was ready and willing to work those hours.”

What about those employees who are paid at a level above minimum wage payments? After the first lockdown in 2020, the Employment Relations Authority determined that an employer must pay employees their contractual salary or wages without deduction even when they couldn’t come to work due to lockdown limitations, because they were ‘ready and willing’ to work: “…  the workers were at all times ready and willing to work. But for the intervening event of the COVID-19 restrictions and/or Dove’s decision to not require them to attend work during the notice period, on the evidence, they were able to fulfil their obligations under the employment agreements” (Raggett & Ors v Eastern Bays Hospice t/a Dove Hospice [2020] NZERA 266 at [32](iii) and [33]). So it seems some employees who are ready and willing to work, even if the employer does not require their services due to lockdown restrictions, must be paid.

In another case, the Authority ordered an employer reimburse an employee for the shortfall between the subsidy paid to the employee and their full salary (but not averaged commissions) during lockdown (Bates v Major Motors Limited [2021] NZERA 324 at [28]).

The upshot? Unless an employee has agreed to reduce their remuneration while they are not working due to lockdown restrictions, an employer risks breaching obligations under an applicable employment agreement by paying less than that agreed.  Employees who are going to work, or working from home, should of course still be paid their usual contractual remuneration.

Given the lack of clear direction and competing views, many wisely suggest that employers attempt to agree on any changes to pay with an employee (especially when reducing pay). Consulting with workers at the outset, consistent with the duty of good faith, would be the bare minimum. Businesses also ought to consider obligations arising out of any financial assistance provided by Government subsidies.

Wage subsidies and safety

If a business qualifies for financial assistance from the Government’s Wage Subsidy Scheme (WSS), this may be a helpful option, especially if it means your staff remain employed. The WSS requires a declaration of eligibility – read this carefully before committing. Among other things, an employer must retain staff and pay them at least the wage subsidy, and must use their best endeavours to pay at least 80% of their ordinary wages. The bar for "best endeavours" is a high one and, as above, employers would be well advised to consult and seek agreement from employees before implementing any wage reduction, even when claiming the subsidy.   

Assessing risk forms part of your safety strategy too – especially if you are carrying out essential work in the Courts or elsewhere. Government guidance (including guidance from WorkSafe) outlines who can operate (it includes the Justice sector and Courts) and how (such as putting measures in place to protect yourself and others like wearing masks, social distancing and contract tracing systems). Work out what you need to do, and how you and your team can do it as safely as possible.

With split levels across New Zealand likely for a while yet, it pays to stay across developments as they affect you and your business, including any exemptions for crossing into other regions for essential workers. Plan ahead to ensure you and your team are ready and willing to work through safely.