COVID-19: What are employers’ legal obligations?

HRD spoke to James Warren of Dentons Kensington Swan to get some clarity on the contentious issue

COVID-19: What are employers’ legal obligations?

As reports surface of new infections in Auckland, employers need to look closely at their legal and ethical obligations.

In particular, how should leaders act if they suspect an employee has COVID-19?

James Warren, partner at law firm Dentons Kensington Swan, said employers have a health and safety obligation to allow employees to remain home if they feel unwell.

If they ignore that obligation, the legal ramifications could be significant.

“The broad obligation which would be an issue for any business involved in that sort of behavior would be that they are potentially creating risk for their customers and anyone else who comes into contact with that person,” he told HRD.

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Warren said any employer allowing or encouraging their staff to come into work following a COVID-test or being advised to self-isolate could be seen as failing to take the relevant steps to protect people from becoming infected on their premises.

“Theoretically if a customer became unwell as a result of allowing someone who should be self-isolating to come into work, or if you knew that person should’ve been self-isolating, you’d be well down the path into a potential claim from someone who then became ill as a result,” he said.

“If you think someone is going to get a very serious illness that could potentially cause someone’s death, or the death of a customer, it is a very serious thing to allow that to happen.”

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While in some industries, allowing staff to work at home can be fairly straightforward to implement, it poses tougher challenges for those in the retail, healthcare and construction sectors.

Casual workers also have a greater incentive to ignore sickness than those on contracts and the pandemic has highlighted the vulnerabilities they face.

Many people have called for the government to address the current sick leave provision for casual workers, particularly in the lead up to the Christmas holidays.

“Often their wages are crucial to their ability to survive and provide support for their families so they may not feel they have a choice but to come in when they feel unwell,” Warren said.

Under the COVID-19 Leave Support Scheme, employers can apply for their staff to receive financial support if they have been told to self-isolate by a health official and cannot work from home.

But the onus is on the employer and it does not cover those with symptoms unless they work in certain sectors.

For employees in health, disability or aged-care facilities or services the opportunity for financial aid extends to the point at which employees report COVID-like symptoms, meaning they are incentivised to remain home before being tested.

Under New Zealand’s current Alert Level 1, Kiwis have been urged to stay home if they feel unwell and seek a test if they notice COVID-19 symptoms.

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