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Businesses operating at Alert Level 3 and 2: What happens if an employee refuses to return to work?

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Anthony Harper

As businesses resume operating in Level 3, and with the hope that the  New Zealand Government will announce a return to Level 2 soon, employees may be feeling some anxiety about returning to work.

To operate at Level 3, businesses should have created a Covid-19 Safety Plan in order to comply with public health guidance and overarching legislation. If an employer has taken the appropriate steps, can an employee then refuse to return? Generally, the answer is no. An employee may only refuse to come to work where an employer has failed to meet those obligations. However, employers must be able to show that they are listening to their employees’ individual concerns and look for ways to resolve them. Now more than ever it is vital that both the employer and employee act towards each other in good faith.

Who can refuse?

An employee is able to remain at home and in their bubble when –

  • They are able to continue to work from home, as normal.
  • Public health guidance requires that the employee stay at home. This encompasses the following people:
    • Employees who are sick with Covid-19.
    • Employees required to self-isolate because they have come into close contact with a person infected with Covid-19.
    • Employees who have dependents that are either infected with Covid-19 or have come into close contact with a person infected with Covid-19.
    • Employees who are at a higher risk of becoming severely ill with Covid-19, or have a person in their household that is at a higher risk.
  • Another form of leave entitlement applies to them.
  • The business is prohibited from resuming operations at the current Alert Level.

(If point 2 above applies, an employer may be able to seek financial assistance under the current Leave Support Scheme.)

If an employee refuses to return to work and none of the above circumstances apply, before taking any action, the employer needs to be careful that they are abiding by the Health and Safety at Work Act 2015 (HSWA), public health guidance and meeting their obligations of good faith. To ensure both of these steps are met, employers should first consult with their employees to determine the basis of their refusal.

Health and Safety concerns

If your workplace has recommenced in Alert Level 3, or plans to recommence in Level 2, it will be important to think about how to approach managing the protection of employees’ health and safety. Under HSWA, both employers and employees have an obligation to ensure their own, and each other’s safety. Practically, employers need to ask their employees for feedback on their existing or proposed health and safety measures in the Covid-19 environment, and employees need to communicate to their employers if they are at risk of having contracted Covid-19.

If an employee believes that they are at risk by coming into work, or would pose risk to others, the employer should attempt to understand and address any relevant concerns.

A suggested guideline

The following is a proposed response to an employee refusing to come to work –

  • Consultation
    • As ordinary employment law continues to apply, if an employee refuses to come to work, employers are required to consult with that employee. Owing to the current environment, consultation may be over the phone, via email, or in-person but the important step is that the employer attempts to understand why the employee is refusing to return.
  • Reasoning
    • The nature of the pandemic has left many people with uncertainty and the employee may justifiably be feeling stressed and anxious about contraction of Covid-19. If this is the case, then the employer should consider practical ways to address them, such as offering flexible hours or offering parking to avoid public transport. The employer could also discuss alternatives such as taking a period of annual leave until cases reduce further or the employee seeks medical advice and if required obtains a medical certificate to remain at home due to stress and anxiety and takes a period of sick leave.
    • Alternatively, the employee may be refusing to come to work because they do not believe that their workplace is safe from Covid-19 contact. If the employee’s concerns are valid, the employer should attempt to alter the employee’s working arrangements to ensure that the employee is as safe as reasonably possible. If the employer has consulted with staff on the implementation of the safety plan in place, these issues should already have been addressed.
    • Employees may simply have enjoyed working from home and may wish to request more flexibility in how they work in the future. This should be addressed in the normal way in good faith, but ultimately when it is safe to do so, an employer will be entitled to ask employees to return to their previous working practices.
  • Disciplinary matter
    • If an employee’s refusal to come to work is not based on any reasonable grounds, then this may give rise to a disciplinary issue.
    • In the event that disciplinary action is warranted, the employer should follow ordinary processes for misconduct. Please note that in the current environment, disciplinary action should be very carefully considered and we would suggest you take careful advice before proceeding on this basis.

If you have any questions regarding operating at Alert Level 3, or employees refusing to come to work, please feel free to contact one of our employment team experts.

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