Employers and employees need to work together to slow the spread of COVID-19, protect New Zealand and keep each other safe. This means that the normal obligations to keep in regular contact and to act in good faith are more important than ever.
Employment law still applies to all employment relationships, regardless of the circumstances that we find ourselves in, including during a pandemic or a natural disaster:
- Your employer must have a written employment agreement (employment contract) for every employee, and employers and employees must do what that agreement calls for.
- Your employer must keep each written employment agreement up to date, including documenting in writing any changes to any terms and conditions of employment you have agreed.
- Employers and employees must follow employment law and any other relevant contractual conditions to change any employment arrangements.
- Employers must negotiate with union representatives, where a union represents the employees, before any changes are made to collective agreements.
- Employers must comply with all minimum employment standards and with the Employment Relations Act 2000.
Employers and employees should first talk about whether the employee can continue to work normally and how the employee can work safely at home or at their place of work.
You can only take sick leave if you are sick, or your spouse, partner, dependent child, or other person who depends on you is sick.
If you are not sick but are required to self-isolate because you are a close contact/household contact and can’t work from home, you should discuss with your employer what options are available.
If eligible, your employer can apply for COVID-19 Leave Support Scheme to help pay your wages (including payment for sick leave).
There is support available for your employer to help pay your wages (including payments for sick leave) if you are required to self-isolate and unable to work from home, in the form of the COVID-19 Leave Support Scheme. This can be applied for through Work and Income by your employer. This financial support is available regardless of whether sick leave is being used or not.
If my employer receives the COVID-19 Leave Support Scheme payment while I am self-isolating, how much should I be paid?
Your employer remains responsible for paying your ordinary wages or salary. They must pay you in accordance with your employment agreement.
You and your employer may agree in writing to reduce your ordinary wages or salary. If you agree to a change to your employment agreement terms, the application for the Leave Subsidy Scheme encourages your employer to use best endeavours to pay at least 80 per cent of your ordinary wages or salary. Your employer should consult and discuss with you to reach agreement in good faith on what approach will be taken, and put this in writing.
Regardless, whenever hours of work are payable, you must be paid at least the relevant minimum wage, as the Minimum Wage Act still applies.
If you and your employer agree that your average hours of work will be used to apply for the COVID-19 Leave Support Scheme, there is a minimum amount your employer must pay you using the COVID-19 Leave Support Scheme payment. This could be for example because you are a casual employee with no regular hours or a part-time worker that regularly works more than the hours stated in your employment agreement. The detailed requirements can be found in the COVID-19 Leave Support Scheme Declaration on the Work and Income website.
When applying for the COVID-19 Leave Support Scheme, your employer must acknowledge that receiving the subsidy does not override or alter their existing obligations under employment law, and that they will not make any changes to their obligations under an employment agreement (including to rates of pay, hours of work and leave entitlements) without your written agreement.
You and your employer should consult your employment agreement and discuss in good faith what approach will be taken. This could include considering special paid leave, annual holidays, long-service leave, other payments (including partial payments) for a certain period of time or any combination of the above.
Your employer cannot unlawfully make you take your annual leave, including while using the Leave Support Scheme. There are circumstances when your employer can require you to take annual leave, but they must give you at least 14 days’ notice.
Any changes you agree with your employer to the terms and conditions in your employment agreement must be recorded in writing.
Do I get paid if I have to stay home because I’m self-isolating in accordance with the COVID-19 traffic light settings?
If you are working from home, you must be paid, as normal, for each and every hour that you work as set out in your employment agreement, unless both you and your employer agree, in writing, that you will be paid at a different rate while you are working from home.
Where hours of work are payable, the Minimum Wage Act applies as per usual. You must be paid at least the relevant minimum wage for all of the hours you work while working from home.
There is support available for your employer to help pay your wages (including payments for sick leave) if you are required to self-isolate, and are unable to work from home, in the form of the COVID-19 Leave Support Scheme. This can be applied for through Work and Income by the employer. This financial support is available regardless of whether sick leave is being used or not.
If you are unable to work from home, and it is unclear what you should be paid, your employer and you should consult your employment agreement, discuss, and seek to reach agreement in good faith on what approach will be taken. This could include considering special paid leave, annual holidays, long-service leave, other payments (including partial payments) by your employer for a certain period of time, or any combination of the above.
Your employer may never unlawfully make you take annual leave, including while using the Leave Support Scheme.
You and your employer should record in writing any agreement that you both come to, particularly if it changes the terms and conditions in your employment agreement.
If you are sick, and you have a sick leave entitlement available, you have a right to use sick leave while you are self-isolating.
If you cannot work from home and need to stay at home, your employer may be able to apply for financial support to help pay your wages if they meet certain criteria.
If you cannot work normally (e.g. your normal number of hours), you should discuss with your employer what options are available.
If your employment agreement has your shift hours and/or days of work, then an employer can’t change them without you agreeing to it.
If the employment agreement says that your employer can cancel or move your rostered shift, the employer must have a shift cancellation clause that tells you:
- how much time in advance they have to give you before they cancel your shift, and
- what your financial compensation is if your employer can’t give you a reasonable advanced notice about the cancellation.
If the employer does not give you enough advanced notice, they have to give you reasonable compensation.
Also, your employer has to make sure that cancelling the shift doesn’t breach your employment agreement. For example, if your employment agreement has a minimum number of hours or states the number of hours that you need to work, your employer must make sure that they give you and pay for that number of hours.
There are some guidelines about what reasonable cancellation time and reasonable compensation are. To find out what reasonable means, visit Hours of work.
Your employer may be able to apply for financial support to pay you if they meet certain criteria.
The law about annual leave has not changed because of COVID-19. In general, you and your employer should agree when annual leave is taken. If you can’t agree, your employer can make you take annual leave in some situations.
It depends. If you want to cancel your annual leave, you should talk to your employer. Both you and your employer could agree to move your annual leave to another date, cancel it or reduce the number of days to be taken. However, the employer does not have to agree to it. Any changes to holiday arrangements should be in writing.
Testing and isolation
Note: If you are a health care worker, you should refer to the guidance provided by the Ministry of Health:
If you are required to self-isolate because you are sick with COVID-19 or isolating because you are a close contact, you should contact your employer as soon as possible.
The Ministry of Health has guidance for employers if a worker, customer or visitor becomes a COVID-19 case or worker is identified as a contact of a person with COVID-19.
You and your employer should have discussions in good faith about how to get proof of the need to self-isolate, and how to manage your absence, including whether you may be able to work from home and when you will be able to return to work. Forms of proof may include using a screenshot of any digital communications (text, email, My COVID Record, etc), being mindful of any privacy issues.
Please note that the Ministry of Health no longer provides 'proof of isolation' letters.
If you have tested positive and completed your 7-day isolation, you can return to work. If you are still sick, you should stay home until you are well and for 24 hours after your symptoms resolve. There is no public health requirement to produce a negative test before returning to work. This is because there is a chance people will test positive for some time despite not being infectious.
Household contacts must test on day 3 and day 7 of their isolation period and return a negative test on day 7 to return to work. If the test is positive, they must start isolation as a COVID-19 case.
More information is available at Unite Against COVID-19(external link)
Public health guidance is clear that a worker who tested positive but is now well and has been symptom-free for 24 hours after their 7-day isolation period does not need to produce a negative test to return to work after their isolation period.
If a workplace is saying this is a requirement, it must be part of their company policy, on which employees were consulted. If it is a company policy, the employer should pay for the test.
The employer will be responsible for arranging the supply of a test that the employer requires be taken in accordance with the company policy.
As the public health advice is that workers can return to work after their 7-day isolation period so long as they are symptom-free, the employee would be considered ready, willing and able to work at that time. If the employer does not allow the worker to return to work, the employee can expect to be paid by the employer.
I’m being pressured to return to work before my 7-day isolation period is completed – is that legal?
Employers should not knowingly allow workers to come to a workplace when they are sick with COVID-19 or required to self-isolate under public health guidelines for COVID-19. If they do, they are likely to be in breach of their duties under the Health and Safety at Work Act. There are some specific exemptions permitted by the Director-General of Health.
Employers should not require workers who are household contacts to return to work during their self-isolation period unless they are using and continue to meet the requirements of the Close Contact Exemption Scheme or Bubble of One. Workers who are caring for dependents who are COVID positive do not have to return to work during their isolation in either scheme. Further details about the schemes:
In these situations, employers and employees should have good faith conversations about what arrangements can be made.
If your employer is insisting that you return to work, you can submit an online query to Employment New Zealand's Early Resolution team. Early Resolution assistance could involve speaking with you and your employer and ensuring everyone is fully informed with relevant and up-to-date information. The team might also arrange a discussion to see if a resolution can be reached.
What do I do if my employer tells me not to take a test or register my result even though I am symptomatic?
To protect yourself and others, it’s important to stay home if you’re sick, and get a test. To prevent the spread of the virus, people who have tested positive are required to isolate for a full 7 days. Day 0 is from symptom onset, or day the test taken, whichever came first.
More details are available from the Ministry of Health(external link)
Employers should enable you to comply with your obligations.
If you get a positive result on your rapid antigen test (RAT), you need to record it at My Covid Record. You will get a text message from 2328 with links to more information on what to do next. This will include an online form where you can detail your symptoms and what extra support you need.
Health and safety
If you are required to self-isolate because you are sick with COVID-19 or have been required to self-isolate under public health guidelines for COVID-19, then your employer should generally not make you come to your workplace. However, if you are isolating because you are a close contact but do not have any symptoms and are a critical worker, there are some circumstances in which they can ask you to work.
If a worker does not consider that the work they have been asked to do is permitted under the current COVID-19 setting, e.g. red traffic light setting, or if they believe that going to the workplace would expose them or other people (including vulnerable people in their bubble) to a serious risk to health or safety, then the business and worker should work together to try and resolve the matter.
As a first port of call, the worker should talk to their manager and make sure the manager understands why the worker considers that the work is not permitted, or what the risks are from the worker’s point of view. A worker may also wish to contact their health and safety representative (if they have one) or union representative, if applicable, who may be able to help the parties come to an agreement about how work can continue safely.
If a business does not address a worker’s reasonable belief or concern about COVID-19, then they should not require any worker to come to a workplace or they will likely be in breach of the Health and Safety at Work Act.
Businesses and workers should be guided by latest public health guidance from the Ministry of Health and WorkSafe on COVID-19.
If you are feeling unsafe at work, you should talk to your manager in the first instance and work together to find the best way to eliminate or minimise the risk. But you should be aware that as rates of COVID-19 infection in New Zealand increase, in some situations it won’t be possible for businesses to eliminate all the risks associated with COVID-19. Where the risks can’t be eliminated, you and your employer should work together to minimise them, so far as is reasonably practicable.
You may also wish to contact their health and safety representative (if you have one) or union representative, if applicable, who may be able to help both parties come to an agreement about how work can continue safely. WorkSafe’s website has more information about this process.
If you do refuse to do work, you need to let the organisation you work for know as soon as you can. If this is not the case, be aware that your employer may consider that you have abandoned your work.
Can my employer make me do tasks that are not in my job description, or change the hours, days or my wages?
An employer cannot make changes to your employment agreement, including hours of work, wages or salary, or make you do tasks that are unrelated to your job, without talking to you in good faith and you agreeing to it. Any changes must be in writing.
Any proposal that involves redundancy must be consulted in good faith and comply with other employment law obligations, including doing what your employment agreement says.
In some situations, such as financial, commercial or economic problems, or a genuine need to restructure the business (for example, moving to an online environment rather than a shop front), an employer may consider workplace change. This may include changes to an employee’s job description, a change to when or how work is done, or reducing an employee’s hours or wages. However, an employer should consider other alternatives first. Redundancy should be the last option and only be considered if there are no suitable alternative arrangements, following a good faith process.
In a job offer, can an employer include a clause that allows them to unilaterally reduce the hours of work or places the employee on unpaid leave?
Employers may be able to, but should seek legal advice and remember to act in good faith. Such a clause in the employment agreements requires employees’ informed consent. All employment standards and obligations also continue to apply. For example, employers cannot offer zero-hour contracts where employees have no guaranteed hours of work but must be available to work if required.
Information on financial support for individuals is available on the Unite Against COVID-19 website and Work and Income website.
If you've lost your job or can't work at the moment, you may be able to get a benefit or some other financial help from Work and Income.
Before you take any action, or the problem becomes bigger, you can try talking to your employer.
If you are a union member, you can contact your union delegate or union office.
If talking to your employer did not resolve your problem, you can use our Early Resolution Service, a free phone-based service for employees and employers that helps you resolve a workplace issue early, quickly, and informally.