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    Managing HR Through COVID-19

    A Practical Guide For Multinational Employers

    Prepared by Simpson Grierson

    As as April 14, 2020

     

    Overview

    This guide will help employers manage HR legal and practical issues arising from COVID-19.

    It covers:

    This publication has been coordinated by Mayer Brown and forms part of a wider Mayer Brown Guide for Multinational Employers, which is available here.

    It has been prepared by Simpson Grierson and is published with their kind permission. With thanks to:

    Simpson Grierson  |  Carl Blake  |  carl.blake@simpsongrierson.com  |  www.simpsongrierson.com

     

     

    Good Practice

    There are a number of key good practice points that employers across all jurisdictions will want to consider in connection with COVID-19:

    1.  Keep up-to-date with accurate information

    It is difficult for an employer to make proper decisions based on rumors, assumptions and “fake news”. Therefore, it is important for an employer to stay up-to-date with accurate information and make decisions based on facts. Employers should monitor official sources, including government advisories (relevant information can be found here), and the World Health Organization (“WHO“) website, and check that the information they receive is factually correct.

    2.  Know where your employees are and where they have been

     An employer cannot keep its employees out of harm’s way if it does not know where they are and where they have been. As outbreaks of COVID-19 occur in various parts of the world, keep track of which of your employees could be at risk. We recommend implementing a travel register to record where and when your employees are travelling (in situations where travel continues to take place).

    3.  Communicate with your employees

    Employers should communicate openly and often with their employees so that they have the information they need to help keep themselves educated and updated about the coronavirus. It should not assume that all employees will educate themselves or have access to the same sources of reliable information. Putting everyone on the same page will help the employer and its employees move together in a timely manner as a business. Open and timely communication will help build trust and reduce the spread of rumors that may cause anxiety in the workplace. Employers should ensure that they have up to date contact details for all employees, including mediums other than work email, in the case of employees not being able to access their work email accounts.

    4.  Provide a safe platform for employees to raise concerns

    Employers should give employees a safe platform where they can raise concerns on all aspects related to work, from mental health to the risk of having contracted COVID-19. This is not just good employee relations, but early detection and doing something about it can help to reduce the spread of the virus. It is one thing to have an employee assistance plan and ask employees to report issues, but if those who report are stigmatized or treated with contempt, employees may be deterred from reporting.

    There may be nervousness and anxiety in the workplace, and possibly even conflicts, given concerns about the virus. Employees should be given avenues to communicate such anxiety to their employer, so that concerns are addressed earlier and do not balloon into bigger issues. Employers who provide or have access to an employee assistance program, should make their employees aware of these services.

    5.  If you can be flexible, then be flexible

    Employers should understand that this is a time of stress for all parties, including employees. Recognize that employees will have different needs depending on their circumstances (e.g., those with school-age children may need more time off as school classes are suspended).

    This time of uncertainty will pass but employees will remember how their employer treated them long after the threat of the virus has disappeared. A disgruntled employee may try to make it known to the world how badly their employer treated them. This may affect the employer’s brand and ability to attract and retain talent. The employer may then have to wait for another crisis or challenging time to get the opportunity to prove itself as a good employer.

    6.  One size may not fit all

    While consistency in treatment is generally to be favored, be conscious that one size may not fit all. For example, “work from home” or remote working may not work for everyone. The implementation of general directives should be checked against legal obligations under the contract of employment and local law.

     

    Action Point Checklist

    In general terms, the steps an employer needs to be taking now relate to four categories: Review, Communicate, Update and Travel. No list of action points will be comprehensive for all employers, but the following will form a good starting point.

    1.  Review

    • Review business continuity plans and how these would be maintained if employees are suffering from coronavirus absences.
    • Review existing sickness policies and procedures. Are they adequately disseminated to staff? Do they need amending?
    • Review contracts of employment. It may be relevant to establish whether or not individuals can be asked to undertake different work or at different locations or at different times from the norm.
    • Review the employer’s emergency procedures, e.g., if there is an infection and the workplace is closed on a temporary basis. If appropriate, carry out a test run of an emergency communication to see how robust the process is.
    • Ensure contact details for all staff are up-to-date. Ensure you have a means of contacting employees other than via their work email address.
    • Undertake a risk analysis of high-risk groups of employees, and what steps can be taken to try and reduce risks for those groups. These groups may include:
      • those who travel frequently to countries where there is currently or may well in future be a risk of infection.
      • those with health issues, such as asthma, diabetes, cancer, or those who are pregnant, who are more likely to suffer adversely if they become infected with the virus.
    • Review procedures in the office for preventing the spread of the virus, e.g. increased cleaning, availability of hand sanitizers and tissues etc.
    • Review planning for the possibility of large scale absenteeism. For example:
      • Identifying whether the business is deemed to be an “essential business”. Information on whether a business is considered to be an “essential business” can be found here. Identifying the essential positions within the business, what needs to carry on during an emergency, and what is the minimum number of employees required?
      • Identifying employees with transferable skills so that these essential positions can always be temporarily filled.
      • Considering flexible work patterns, such as employees working from home.
      • Identifying those employees who have the necessary IT infrastructure to work from home (e.g., remote access to the office computer systems).

    2.  Communicate

    • Identify an appropriate person as spokesperson/communicator of updates on policies etc., with appropriate credibility.
    • What, if anything, is said about absence from work for reasons other than ill-health, e.g., where an office is closed?
    • Assuming the employer has a health and safety committee, have there been any discussions with that committee about COVID-19 and its potential impact? If there is no such committee, the employer may want to consider setting one up.
    • Communicate as a matter of urgency with the high-risk groups identified in any risk review to ensure they are aware of their high-risk status and the measures that are being taken to assist.
    • Ensure managers are aware of the relevant workplace policies.
    • Consider issuing guidance to employees on how to recognize when a person is infected with the coronavirus. What are the symptoms, and what should one do if one is taken ill at home or at work? It is also important to emphasize that individuals may not recognize that they have the virus and so may not be exhibiting symptoms. Employees should be informed of the reporting procedure within their employer if they have a potential infection as well as any official reporting process.
    • Provide advice to encourage individuals to take a degree of responsibility for their own health and safety and to slow the spread of the virus. For example, advice on handwashing and use of sanitizer gels, coupled with a willingness to self-identify where it is possible that individuals have come into contact with individuals with the virus, have become infected themselves or have returned from private travel abroad to an area which turns out to be affected by the virus.
    • Make clear that where staff are ill, they must not come to work regardless, i.e., “struggle through”.

    3.  Update 

    • Initiate a system to keep up-to-date, especially given the speed at which infection is spreading.
    • Consider establishing a committee on the employer’s side to coordinate responses and engage with any staff consultative forum, and with particular responsibility for staying up-to-date with public health updates.
    • How will employers communicate to employees regular updates on the coronavirus and its spread? As news develops, it is extremely important for an employer to be issuing fact-based updates, to avoid the possibility of fear being used by worried employees to make decisions about whether or not to come to work, whether to travel abroad, etc.
    • Who will have the authority to determine changes to policy and issue any new communications to staff?

    4.  Travel

    • Log employee travel before it is booked and check against the latest travel protocols.
    • Ensure staff know that this applies to personal travel as well as business travel. Keep staff updated on the government’s travel guidelines (govt.nz/government-actions/travel-restrictions)
    • Encourage staff to tell you if close family members with whom they share a house have travelled to infected areas.
    • Replace face-to-face meetings (especially those involving travel) with video conferences, telephone conferences, etc.
    • For “essential businesses” remaining open, consult/communicate about whether to encourage varied work patterns to avoid travelling on public transport at rush hour.

     

    Country Overview

    As at April 14, 2020

    1.  What are an employer’s main legal obligations?

    The main areas of an employer’s legal liability associated with COVID-19 in the workplace include:

    • Mitigating health and safety risks and protecting workers from them, so far as reasonably practicable under the Health and Safety at Work Act 2015 (“HSWA“);
    • Complying with the terms of employment agreements; and
    • Complying with the Employment Relations Act 2000 (“ERA“), particularly acting in good faith in all communications and decision making around changes related to COVID-19.

    2.  Do I need to prepare for and have in place a workplace plan to deal with COVID-19?

    There is no legal requirement in New Zealand for an employer to specifically have a pandemic response plan. However, the HSWA requires all employers to mitigate health and safety risks and protect employers from them so far as reasonably practicable. One reasonably practicable step an employer could take is to develop a plan dealing with the workplace health and safety issues associated with COVID-19.

    We recommend that employers prepare a detailed plan (if one is not already in place) and implement it. The plan should deal with what happens during the outbreak and steps to be taken after the outbreak. The overall goal is to ensure services are maintained as close to normal as possible, with the staff and customer protection measures recommended by the Ministry of Health.

    3.  What should a workplace COVID-19 response plan cover?

    Employment New Zealand has issued workplace guidance for employers and employees on COVID-19, which sets out guidance for the workplace including potential employment situations and information on the Government’s assistance package. Details of the Government’s assistance package can be found here.

    For general guidance on the contents of a workplace COVID-19 response plan, please see the Appendix, in conjunction with the Action Point Checklist.

    4.  Can I direct my employees to go home or stay at home if there is an outbreak?

    Both employers and employees should follow Ministry of Health guidelines regarding work attendance in order to meet their obligations under HSWA.

    Employees required to stay home during the temporary close down should be given the opportunity to work from home if possible. If employees cannot work from home due to the nature of their roles or they refuse to do so, the employer will need to work with the employee to reach an agreement about taking paid sick leave, annual leave or leave without pay.

    For “essential businesses” that remain open during the temporary close down, it could be deemed reasonable to require the employee to stay away from the workplace to prevent a possible infection in the workplace if an employee has travelled to a country with high rates of COVID-19 or has cold-like symptoms. If an employee insists on returning to the workplace, the employee can be asked to obtain a medical certificate to prove they are able to work (at the employer’s expense).

    Under HSWA, businesses are required to mitigate health and safety risks and protect their workers from them, so far as reasonably practicable. Further, employees have a legal duty to take reasonable care for their own health and safety and that their acts or omissions do not adversely affect the health and safety of other employees. As such, employers can rely on the duties and obligations under HSWA to take steps to ensure the health and safety of workers. This includes putting in place measures for at risk employees staying away from the workplace to prevent the exposure to others of an infectious disease.

    5.  Can I direct an employee to see a doctor?

    If an employee insists on returning to the workplace and the workplace remains open during the temporary close down, the employee can be asked to obtain a medical certificate to prove they are able to work (at the employer’s expense).

    6.  Do I have to continue to pay wages and provide other employment-related entitlements during a COVID-19 outbreak?

    Employees who continue to work in the workplace as usual or from home will be entitled to their usual pay and entitlements.

    If a worker is sick, they should be paid sick leave. If sick leave is not available, anticipated sick leave or paid special leave should be considered. If an employer requires an employee to stay home due to sickness and the employee cannot work from home, the employee should be paid. This may be in the form of special paid leave or, as agreed between employer and employee, annual leave or sick leave.

    During the temporary close down, employers may discuss with their employees the possibilities of unpaid leave, reduced hours of work or reduced remuneration. Such agreements should be recorded in writing, and an employer must not exert pressure on the employees.

    Employers should apply for the COVID-19 Leave Payment Scheme and the COVID-19 Wage Subsidy Scheme where applicable. The Leave Payment Scheme provides payments to employers to assist with paying employees who are required to self-isolate. The Wage Subsidy Scheme provides assistance to businesses who are significantly impacted by COVID-19 and will struggle to retain and pay employees as a result.

    Applications for the Leave Payment Scheme and the Wage Subsidy Scheme can be made on the Work and Income website here.

    7.  Can I quarantine certain staff to certain parts of an office or send them to a different office?

    Outside of a temporary close down or for “essential businesses” that remain open during a temporary close down, there may be provision in employment agreements to allow for an employer to reasonably relocate its premises or transfer the position to a different office. Agreement should be reached with staff regarding movement to different offices where possible.

    8.  Can I direct my employees to report suspected cases of COVID-19?

    Employees have an obligation under HSWA to take reasonable care for their own health and safety and to take reasonable care that their acts or omissions do not adversely affect the health and safety of other employees. If an employee is being tested for COVID-19 or suspects that they may have COVID-19, they must notify their employer that they believe they are at risk of spreading COVID-19 and why.

    9.  Can an employee lawfully refuse to attend work if there is a COVID-19 outbreak?

    Employees have an obligation under HSWA to take reasonable care for their own health and safety and to take reasonable care that their acts or omissions do not adversely affect the health and safety of other employees. If the employee reasonably believes that performing work is likely to cause serious harm to them, they can refuse to perform that work. This may include refusing to attend work if the employee reasonably believes attending work is likely to cause them serious harm. There must be reasonable grounds for them to form such a belief.

    Employers and employees should follow Ministry of Health guidelines to assess whether attending work is appropriate.

    10.  Can I screen employees and customers before allowing them to enter the workplace?

    Employers may screen customers and/or employees before allowing them into the workplace. Employers are able to give lawful and reasonable directions which employees are required to comply with. However, this would require the employer to show that there is a particular risk that their employees may have been exposed to COVID-19, and it may not be considered “reasonably practicable” under HSWA for an employer to require screening.

    CONTACT: Simpson Grierson  |  Carl Blake  |  carl.blake@simpsongrierson.com  |  www.simpsongrierson.com

     

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    Appendix:  Workplace COVID-19 Response Plan

    A plan should deal with the following:

    BEFORE AN OUTBREAK

    • Preventive measures.
    • Disinfecting the workplace regularly.
    • Maintaining good indoor ventilation.
    • Making sure that employees, suppliers and customers are aware of the employer’s plans in the event of an outbreak.
    • Ensuring sufficient supplies of appropriate masks, alcohol wipes, gloves, paper towels, thermometers, disinfectants, etc.
    • If employees are required to travel to areas known to have the virus, whether such travel is necessary.

    DURING AN OUTBREAK

    • The steps the employer will take to ensure the safety of employees while at work during a COVID-19 outbreak include how an employer will identify risks of employees becoming infected and how to minimize such risks. The employer may also wish to seek advice from government/official sources as to what steps need to be taken, e.g., quarantine requirements.
    • Communication strategies such as how and what information will be communicated to employees, suppliers and customers.
    • Where employees will work, e.g., home, in the office or in alternative temporary offices.
    • At what stage will the workplace be closed and who will decide that.
    • How to deal with infection and/or deaths of colleagues, e.g., counselling.
    • A mechanism for determining whether employees, suppliers and customers will be allowed access to the workplace, especially if they show symptoms of being infected by COVID-19.
    • What to do with high-risk/exposure staff (e.g., pregnant, key employees and employees who travel).

    AFTER AN OUTBREAK

    • Ways to ensure that employees and customers have fully recovered before they are allowed back into the workplace.
    • Rehabilitation for sick employees returning to the workplace.

    Communication with employees and flexibility on enforcing requirements imposed on employees under their contract of employment will be important in maintaining employee relations and reducing anxiety and panic during an outbreak. Therefore, depending on the circumstances, employers may wish to:

    • Discuss with staff the possibility of a workplace closure prior to closing.
    • Allow employees to take annual leave or unpaid leave once sick leave has been exhausted.
    • Allow employees to work from home.
    • Explore salary reduction or unpaid leave as an alternative to termination of employment where business has slowed down.

    Employers should make visitors to its offices aware of any health and safety hazards associated with entering the workplace before any intended visit, where reasonably practicable.

     

    This publication by Simpson Grierson provides information and comments on legal issues and developments that may be of interest to our clients and friends. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek legal advice before taking any action with respect to the matters discussed herein.