Bartlett Law - Barristers and Solicitors

Bartlett Law’s Crystal Ball

March 2020

Welcome to the first edition of Crystal Ball for 2020.

This edition is the result of the coronavirus.  We’ll cover other hot topics in a future edition.

Much has been written about coronavirus already, so our focus is on providing practical suggestions.  For information about the virus itself, we suggest you go online (the Ministry of Health has useful information, as does WorkSafe New Zealand).

Please do read this newsletter.  It’s got useful tips and suggestions for what businesses need to and should do, plus helpful links, including one to an occupational health specialist medical practitioner, Dr Simon Ryder-Lewis.

Occupational health specialist are excellent sources of up to date advice and they can also assess your workplace for risks.  We use Dr Simon Ryder-Lewis from Work Health Solutions (website: https://workhealthsolutions.co.nz/ or contact: https://workhealthsolutions.co.nz/contact-us/). Dr Ryder-Lewis has provided some of the information below.

General facts (courtesy of Dr Ryder-Lewis)

The incubation period of coronavirus seems to be between one and 14 days with an average duration of incubation of between three and seven days.

Early symptoms include a cough, fever and breathing difficulty.

The infectious period seems to begin about 48 hours before symptoms and to continue until 48 hours after symptoms have resolved.

Hygiene (again courtesy of Dr Ryder-Lewis with some additions from Bartlett Law)

Practising good hand hygiene and sneeze/cough hygiene is the best defence against most viruses.

You should wash your hands frequently with soap and water and dry them well, before and after eating and after going to the toilet.  The suggested time spent hand washing is 20 seconds.  That is much longer than it seems.  It is essential that you use soap, as well as water, as the soap is what actually cleans your hands.

Use alcohol-based hand sanitiser if you can’t wash and dry your hands.

Cover coughs and sneezes with clean tissues or use your elbow if you don’t have a tissue.  Dispose of tissues immediately.

Consider having tissues/paper towels available for opening and closing doors, pushing lift buttons etc if you have any concerns about the surfaces you are touching.  In our office we have placed packets of tissues in various strategic places.

Avoid contact with others – touching, kissing, hugging and other intimate contact.  We gather that some people are having foot shakes instead of hand shakes.  Take care with that though as that may be a health and safety risk of a different kind as it may put you off balance.

Use of face masks (courtesy of Dr Ryder-Lewis)

For most people in the community, PPE such as face masks is not recommended.

For people with symptoms of an acute respiratory infection, the WHO recommends that there may be benefit in wearing a face mask to reduce the spread of infection to other people.

What to do if you are unwell

Seek medical advice.  The Ministry of Health advises people to ring Healthline’s dedicated COVID-19 number: 0800 358 5453 or to check their doctor’s website first, before visiting the GP’s office or the hospital.

Isolation

The Ministry of Health also has useful information about this.  You should check this as it is beyond the scope of Crystal Ball to provide advice about self-isolation/self-quarantine.  Alternatively, you could seek advice from someone like Dr Ryder-Lewis.

Information to employees and other workers

Employers/business owners/PCBUs should keep up to date with current advice about coronavirus and pass this information on to their workers (employees and other workers).  It may be sensible to make this one person’s responsibility.

Disseminating information can be done by electronic means or (as well as) in meetings.

In our experience meetings can be more productive than just using electronic means as they encourage dialogue and discussions and often good ideas or useful practical tips come from such meetings.

One practical tip we got from our own health and safety meeting was to have boxes of tissues available around the office.  Another suggestion was to make sure everyone’s contact details are up to date so that people can easily be contacted if necessary.

We also talked about making sure, to the extent this is possible, staff can work remotely if required.  This may involve some workers setting up their home PCs to use cloud-based information.  It’s a good idea to do this now.

We advise businesses to explain to employees what the situation will be with regard to paid and unpaid leave should that become relevant.  Even if your business might only be able to pay employees their statutory entitlements, it is better if people know that now rather than later.  One of the stressful aspects of these situations is uncertainty, so to the extent that a business owner or employer can give workers some certainty, that is useful.

Develop and publish workplace policies

Businesses should consider formulating written policies and protocols and developing an emergency leave policy.

Businesses might also want to develop a policy or protocols for what to do if a worker feels unwell or is told to self-isolate due to having been in contact with someone suspected of having coronavirus or who is told to self-quarantine.

They might also need workplace-specific hygiene policies or protocols for day-to-day work.  An occupational medicine specialist can assist with this.

Leave entitlements

Sick leave – paid and unpaid – for sickness only

An employee who is off work due to illness (or injury) is entitled to paid sick leave, to the extent of their annual entitlement and any accrued and carried over sick leave entitlement.

The same entitlements apply to an employee whose spouse or partner is sick (or injured).
or if a person who depends on the employee for care is sick (or injured).

Employers can of course grant additional paid sick leave should they choose to do so.

Employees who have used up their entitlements may also be entitled to unpaid sick leave, at the discretion of their employer.

Annual leave once sick leave has run out

If an employee has run out of his or her entitlement to paid sick leave, the employee can request to take paid annual holidays (if they have any available) or they could ask to anticipate their annual holidays.  It is up to the employer to decide whether or not to agree to either type of request.

What an employer can’t do is require an employee to take their paid annual holidays once they’ve used up their entitlement to paid sick leave (unless they first try to get the employee to agree to take annual leave, agreement can’t be reached, and then the employer gives the employee 14 days’ notice of the requirement to take sick leave).

Taking leave when the employee is not actually sick

Unless the employee (or their spouse or partner or a dependent) is sick, an employee won’t be entitled to take paid sick leave.

So, if an employee has to compulsorily self-isolate or self-quarantine, and the employee is not unwell, he or she won’t be entitled to take paid sick leave for the period of self-isolation or self-quarantine.

An employee in that situation could apply to take their annual leave.

Difficulties with self-isolation/self-quarantine in the absence of sickness

Compulsory self-isolation

The employee is likely to be fit and able to work but prohibited from doing so by Government directions.  In these circumstances, an employer must take the steps it can to ensure the employee complies with relevant Ministry of Health directions concerning compulsory self-isolation/self-quarantine.

Because an employee in these circumstances won’t be entitled to any income (unless they take annual leave or can work full or part time from home) employers may need to consider what they can do to help the employee who is off work.  This will need to be done on a case by case basis, but there is no legal obligation on the employer to pay the absent employee in these circumstances.

Employers have a duty of good faith towards their employees so as a minimum they should consult with their employees about any options for pay or some type of working from home.

What about voluntary self-isolation?

This could occur if an employee wants to stay home and not attend work because they are scared of catching coronavirus.

If the employee’s workplace is as safe as the employer can reasonably make it, then the employee won’t have grounds to refuse to come to work.  So, if they stay at home, they won’t be entitled to paid sick leave or to be paid and other issues may arise from their absence (eg. refusing a reasonable instruction to go to work).  They could ask to take annual holidays or they could see if they can negotiate with their employer to work from home.

If however the employee reasonably considers the workplace isn’t safe, and is therefore about to refuse to work, the employee must let the employer know and try to resolve their concerns with the employer.  If those reasonable concerns can’t be resolved, the employee may be justified in staying away from work.

What happens if there is coronavirus in the workplace?

It is likely that other employees who came into contact with the infected person will be required to self-isolate or self-quarantine.

The employer and the PCBU would then need to think about whether or not to close the business.

The leave situation will be the same as for compulsory self isolation – no entitlement to pay or paid sick leave.  Again, the employer’s duty will be to act fairly and reasonably, and to consult as far as possible with employees as to the options.  These may include reduced hours or days of work, unpaid leave, or redundancies.

Medical testing

Unless the employee consents to it (on a one off basis or via their terms of employment), an employer can’t require an employee to undertake medical testing.

The Holidays Act does contain some situations when an employer can require an employee to provide proof of sickness.

Random points

Make sure employees understand that they must let their employer know if they are feeling unwell.  It would be prudent for employers and PCBUs to provide all workers with easily accessible descriptions of the symptoms of coronavirus.

Ensure all workers who are unwell stay home.  Consider if the business has any particularly vulnerable workers.

We suggest employers provide employees with up to date details of their accrued sick leave and annual leave and any entitlements to anticipate leave.  We find that sometimes employees don’t fully understand when and how they accrue leave.  Also, if the information is provided now, employees can check that they agree with their leave balances and if necessary have those balances checked.

Employers/PCBUs should make sure they have plenty of soap in the business’s toilets and kitchens.  They should provide paper hand towels rather than reusable towels.

They should consider how any office coffee cups, plates etc are washed.  As a minimum, hot soapy water should be used and the dishes must be dried properly.  The person doing the dishes should be provided with gloves (ideally disposable).

For small businesses, is it an option for employees to have their own cups etc, or perhaps use disposable cups (even though that is not “green”).

Does the office need to have disposable gloves generally available?

Businesses that lease their premises should check with their landlords regarding measures being taken by the landlords for cleaning, sanitation, disinfection etc.

Offer free flu injections – as that may reduce the risk of a secondary infection.

 Penelope Ryder-Lewis    Carolyn Heaton    Andrea Simpson-Keene    Suzanne Mackley

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