This article has been republished. It was first published in March 2020.
So you think you’re good employer and that of course you’ll do the right thing if coronavirus takes hold in New Zealand?
Not good enough.
Under the Health and Safety at Work Act, your instincts for being ‘one of the good guys’ don’t even start to cut it.
You are required, by law, to make sure you do everything practicable to prevent your staff from getting it.
In theory, you are already supposed to take all steps to prevent them catching one another’s colds, flu, and any other communicable disease.
But as the covid-19 outbreak grips the world and heads towards pandemic status, you can bet your boots your staff are going to take your efforts on this issue far more seriously than the blind eye so often turned to the perennial office sniffler.

Far deadlier than flu

To recap, particularly for that large group of people inclined to think this is just the Y2K bug but with Kleenex, current scenarios that assume control measures are only partially effective suggest that up to 40 percent of the New Zealand population could contract covid-19 during its first winter cold season.
That means perhaps 10,000 deaths are possible, particularly among the elderly, according to globally respected epidemiologist Michael Baker, from the Otago University School of Medicine.
That’s compared to 500 deaths annually from the flu in New Zealand.
Serious. Right?
Thankfully, if overwhelmingly, there is an enormous amount of advice already online about how to think about the many situations could arise if containing the virus requires major economic disruption.
For example, it’s not as simple as saying “self-isolate for 14 days and come back to work in a fortnight”. Annual sick leave is set at five days, so what about the rest?
Can you make your staff take annual leave?
What if your employee isn’t sick, but their child is or has been sent home from school for self-isolation? Do you have to pay them then?
Did you know you can go to jail in the worst cases of failure to comply with the Health and Safety at Work Act?

The Basics

  • “Minimising the spread of coronavirus is important to keep employees safe and well at work,” says the website for WorkSafe, the government agency that administers health and safety law. “This should be done before thinking about the interests of the business or organisation”;
  • Consult your staff, plan your response together and record your agreements and policies in writing (you can use this again in the future, so it’s not time wasted);
  • Make preparations while you can;
  • If you get this wrong, as an employer, the fines are not trivial and range from hundreds of thousands of dollars through to jail time.

Your Legal Rights and Obligations

  • As a Person Conducting a Business or Undertaking (PCBU), an employer or business owner – these requirements extend to protecting the health of customers  as well as staff – you have legal obligations under the Health and Safety At Work Act;
  • Medical testing: you cannot insist on it. Staff must agree to it. However, law firm Buddle Findlay says you would “most likely” be justified in making an employee stay home if they declined testing where it was reasonable to think they could be infected;
  • You do still have to pay staff who you have required to stay home but who are not unwell, as they are fit and ready for work rather than unable to work;
  • You are not required to pay more than 5 days’ sick leave, or to pay sick leave beyond five days if your employee is well but they are staying home to look after a sick dependent relative – eg, a child whose school has been closed for a 14 day self-isolation caused by another pupil having the virus; 
    • However, WorkSafe says “ensure employees do not feel discouraged to take leave when they are feeling unwell, just because their sick leave entitlements have run out; and
    • consider an emergency leave policy and have a discussion with any employees considered to be at a high risk about how time away will be classified.” Doing that before the issue arises will make it far smoother to manage;
  • You can require an employee to take annual leave, but you must give 14 days’ notice. That probably won’t work if your firm is affected by coronavirus;
  • A compulsorily quarantined worker is legally defined as not being available to work. An employer can legally decline to pay them. However, before taking that step, options such as working from home, different hours or other measures to avoid personal contact must be considered first;  
    • “Most employers will want to do the best by their employees, and assist them where possible,” says Buddle Findlay. “Even so, payment will not always be an available or acceptable option, particularly if the issue is widespread or recurring";
  • Employees have a right to refuse to come to work if they fear they will catch the virus, as long as that fear is reasonable and not “remote”. It is likely a court would have to decide what is meant by “remote”.

Penalties for Getting It Wrong

Penalties for the most serious offences for breaches of Sections 36 to 46 of the HSW Act are maximum prison time of five years or a maximum fine of $600,000, or both.
The offences are grouped as:
  • “reckless conduct in respect of duty, without reasonable excuse, that exposes an individual to a risk of death or serious injury or illness”;
  • “failure to comply with a duty that exposes an individual to a risk of serious injury, serious illness or death”; and
  • failure to comply with a duty.
Crucially, recklessness does not require an ‘intention’ to harm, just an awareness that harm could occur.

Practical Steps 

Thankfully, despite all the monstering above, many of the actions you can take as an employer to help contain the virus are things that every employer should already be doing. Reviewing current arrangements and strengthening some of them is a timely step to take right now.
For example:
  • Implement rigorous hand-washing – 20 seconds at least – and make sure there’s soap and drying facilities. In our office, the paper towels in the loos keep running out. Talk to the cleaners and sort that out;
  • Make sure there is plenty of hand sanitiser, soap and towels available wherever they are needed;
  • Ensure staff who are unwell stay home;
  • Cover your mouth and nose when sneezing and coughing;
  • Offer free flu jabs to your crew. Coronavirus is most serious when it accompanies another respiratory condition;
  • If you don’t have a regular cleaning schedule in your small business, it’s time there was one;
  • Use disposable rather than reusable towels and cloths;
  • Make sure your air-conditioning units are clean – check with your landlord if in a commercial building with multiple tenants;
  • Monitor your workers’ health and be ready to discuss working from home or other measures for potentially vulnerable employees. The virus is deadlier among older people than the young;
  • Postpone travel to mainland China and ensure anyone who’s just been there self-isolates for 14 days;
  • Depending on government advisories, consider limiting staff involvement in events involving large numbers of people.