News

Currently there is a lot of misinformation that employees who have taken a COVID-19 test and been advised to self-isolate while waiting for their test result, should be granted special leave paid by the employer.

To be clear, employees who are waiting for a test result, or who subsequently return a negative test result, are not eligible for the Government’s Leave Support Scheme.

A member of our team fell ill this week, showing some symptoms indicative of Covid-19. On the advice of their GP, they were tested for the virus.

The process for the test was straightforward with the GP’s surgery advising a specific time to attend their premises later the same day for a swab test.

Despite high expectations, the new ‘Resurgence Wage Subsidy’, not to be confused with the original ‘Wage Subsidy’ or the later ‘Wage Subsidy Extension’, will not be available to some businesses who are hard hit in Level 3.

That is because you can't receive the Resurgence Wage Subsidy at the same time as you are getting other COVID-19 payments like the Wage Subsidy Extension or the Leave Support Scheme. 

There have been numerous articles concerning the legality of pay cuts by employers during and since lockdown, many of which provide misleading commentary.

One such article advised that “employment law had not been suspended and that any employer wanting to reduce an employee’s pay would need to obtain their consent”.  That is not the full story.  Another was dismissive of the “no work, no pay” principle and supported the Employment Relations Authority’s finding in one case that the employees were “ready, willing and able” to work during lockdown and therefore should have received their full pay for the period in question.

Whether or not investigation interviews should be recorded can be a vexed question.  Following are some of the pros and cons you may wish to consider:

Key Themes

The Government has today, announced changes in criteria to qualify for the COVID-19 Wage Subsidy Extension. 

The criteria previously required employers to demonstrate a 50% decline in revenue for the last 30 days prior to applying (in comparison to the same period in 2019). 

This has changed to a 40% decline in revenue for a 30 day period in the 40 days before applying (starting no earlier than 10 May 2020), compared to a similar period last year.

The Employment Court has just released its decision in the matter of Leota v Parcel Express Couriers Limited, finding that Mr Leota is an employee and therefore entitled to bring a personal grievance against Parcel Express. While this decision is limited to the facts of the case, it is easy to see it forming the basis of a wider application for courier drivers, and other workers purported to be contractors.

Many people seem unclear about whether employees can be required to use their annual holidays; and whether the wage subsidy can be allocated to payment of holiday pay. 

The answers are: 

1. Employees may be directed to use their annual holidays by giving 14 days’ notice, provided genuine efforts have first been made to reach mutual agreement on when the holidays will be taken. Note that this applies to “entitled” holidays (i.e. those remaining from the employee’s allocation at their last anniversary date) as opposed to the leave being “accrued” in the period since the last anniversary date.
2. The wage subsidy can be used to part pay annual holidays if you made your declaration for the wage subsidy before 4pm on 27 March 2020.
3. The wage subsidy cannot be used to part pay annual holidays if you made your declaration after 4pm 27 March 2020.

Preparing for Level 3 will be no easy task.  It certainly will not be business as usual. You have a few days to plan how you will do this.

All businesses operating under Level 3 must have a COVID-19 safety plan that sets out how they will operate safely. Worksafe is all over this; and has developed a plan applicable to all businesses. Most industry groups have also been working on plans for their particular sector, which you should review.  The key issues to consider in your plan are:

1. Risks of re-starting 
2. Information for workers to keep them safe 
3. Ensuring workers are well and able to work 
4. Ensuring workers remain safe at work
5. What to do in case of suspected exposure 
6. Review process
7. Impact on business activity

Slipping under the radar at the end of last week was the Epidemic Preparedness (Employment Relations Act 2000 - Collective Bargaining) Immediate Modification Order 2020. Its purpose is to ensure that no party to collective bargaining is disadvantaged by the COVID-19 lockdown.