Saturday, August 1, 2009

New Zealand

Planning for Disaster – the Swine Flu Pandemic in New Zealand 

By Jennifer Mills
Minter Ellison Lawyers

There is worldwide concern about the reach and possible impact of the swine flu pandemic. Given that employees are the lifeblood of most businesses, a key issue in pandemic planning is considering how a business will cope if its employees are infected. This article briefly considers, in a New Zealand context, some of the employment issues that the swine flu pandemic raises for businesses. 

The swine flu pandemic raises a number of employment-related questions. Can an employer send sick employees home if they report for work? What about employees who seem well, but who have been in contact with someone who has, or may have, swine flu? In New Zealand, the legal position is that an employer has an obligation to take all practicable steps to ensure that the workplace is free of hazards, including health hazards such as swine flu. This may require an employer to send sick employees home, to minimize the risk of them passing any illness on to other employees. More generally, employers may also need to consider factors relating to the workplace itself, to ensure that the workplace does not pose an unnecessary risk to employees and visitors.

In addition, given that swine flu has been declared a pandemic, health authorities have quite extensive powers, including the ability to force people to quarantine themselves and to require premises (including businesses) to be closed. If this occurs, an employer has no choice but to direct employees to remain away from the workplace.

Other than in the above circumstances, however, New Zealand employers generally cannot require employees who are not sick to stay away from work. Doing so risks a claim from the employee that they have been unlawfully suspended, although in some cases an employer may be able to rely on health and safety obligations to require employees who are (reasonably) suspected of having the swine flu to remain at home, even if they seem well.

The question then becomes whether an employer must pay employees who are absent because of the swine flu. In New Zealand, under the Holidays Act 2003, employees are entitled to use sick leave in situations where they are sick or injured, or where their spouse or someone who depends on them for care is sick or injured. This entitlement will apply if an employee has to stay home because of their own illness, or to care for a family member who has swine flu. Where an employer directs an employee who is well to remain at home, then it is likely that there will be an obligation to pay the employee, although there may be special circumstances where this is not required. Where it is the employee who elects to remain at home, the situation is less clear and the best solution may be to reach some form of compromise or agreement with the employee.

A related question is whether an employer can require employees to work from home. In New Zealand, this will largely depend on any “location” provisions contained in the relevant employment agreements. In the absence of a provision which envisages the employee working from home, consent will be required. Similarly, the issue of whether an employer should compensate employees for additional costs incurred by working at home is one that should be negotiated and agreed with employees. That said, where the employee is directed to work from home and incurs extra costs, in most situations these should be borne by the employer.

In addition to these employment law issues, a number of commercial law and general business issues will arise. Swine flu has the potential to cause serious disruption to businesses – and responsible organizations ought to act now, before it is too late, to put business continuity plans in place and to take reasonable steps to avoid the spread of the disease in the workplace.