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Bubble Uncertainty - employment questions answered

The announcement of the Trans-Tasman Bubble was celebrated on both sides of the Tasman, but the softening of border control measures brings a level of uncertainly and a new wave of COVID-19 related questions for employers.  HRNZ has asked Duncan Cotterill Partner Jessie Lapthorne to provide some guidance on what employers can and cannot do, if employees decide to pop across the ditch.

 

Do employees have a duty to disclose their plans?
Inherent in the employment relationship are the obligations of good faith. Employees and employers have an obligation to not mislead or deceive each other and to remain responsive and communicative.

Employees have a duty under the Health and Safety at Work Act (HSWA) to co-operate with any reasonable policy or procedure relating to health and safety. They also have a duty to comply with any reasonable instruction from their employer to allow the employer to comply with the HSWA.

It is reasonable to ask employees to tell you if they are traveling overseas and thus are at greater risk of COVID-19 due to travel. However, this must be done reasonably, and must not unreasonably intrude on their personal affairs.

Any personal information collected from an individual for the purpose of COVID-19 must be kept confidential in accordance with the Privacy Act 2020.

While an employer has the right to ask employees the purpose for their leave, the employees do not have an obligation to disclose their personal information.


Can an employer refuse a leave request?
An employer can withhold consent to an employee’s request for annual leave. However, this must not be ‘unreasonable’ as stated in the Holidays Act 2003, section 18. As with any action by an employer, declining annual leave must be done in good faith. It is unlikely to be reasonable for an employer to decline annual leave simply because an employee is wanting to go overseas.

Arguably, an employer may consider that the risks associated with Bubble travel for the workplace are too high. For example, a high-risk workplace where employees are in close contact with others, or a workplace that cares for vulnerable people (like aged care).

The perceived risks and subsequent position on Bubble travel can only be decided on a case-by case basis. Employees have scope to challenge management decision-making through an unjustifiable disadvantage grievance. In the vast majority of cases, risks can be mitigated with precautions in place such as requirements for managed isolation and alternative staff shift arrangements. Unless it can clearly be shown that such travel would result in significant risk to the workplace, and there are no alternatives, it is unlikely that refusal of annual leave solely because of Bubble travel would be ‘reasonable’.

We advise employers to discuss, in good faith, alternative working options, contingency plans and return to work requirements with employees requesting leave for overseas travel.

 

Planning remote working options and contingency plans
Upon return from overseas, an employer must enforce a self-isolation period if it is required under public heath guidelines for COVID-19.

Employers should recommend to employees that they take care in deciding whether, where and when to go overseas. Where applicable, employers should decide on remote working options with employees who are intending to travel overseas. By identifying and making contingency plans proactively, both employers and employees can have some certainty in case things go wrong during travel.

Factors to consider when deciding on a contingency plan include:

  • Establishing actionable remote working options in case something goes wrong. This includes traveling with devices and equipment necessary for remote work. Also, ensuring the employee will be staying in accommodation with appropriate accesses and spaces for remote work such as internet connection. This is particularly important if traveling with dependants or to areas with little connection coverage.
  • Discussing payment entitlements and obligations for the different scenarios an employee may find themselves in during their travel. Clarifying and agreeing to payment alternatives now, minimises the risk of dispute in the future. See pay entitlements below.
  • Setting out clear dates where plans and expectations should be revised if the employee must remain in isolation or lockdown for a prolonged period of time.

 

Entitlement to payments
In the case where an employee is in Australia and is on annual leave, they can use their existing entitlements and their leave pay in accordance with the Holidays Act.

Where an employee gets stuck in Australia either in lockdown or quarantine, and are no longer on annual leave, and can work and carry on their duties remotely, they should be paid as normal for every hour that they work. This must be at least the applicable minimum wage.

Where an employee gets stuck in Australia either in lockdown or quarantine, and are no longer on annual leave, are not sick and are unable to work remotely, the employee may not have an entitlement to payment for the period that they are unable to work. Specific advice should be sought based on the individual circumstances.

 

Practical Implementation
If an employer has specific and reasonable concerns about an employee’s intended travel location or timing of leave, it has the option to decline the leave request. However, it would be difficult to show that these concerns are reasonable for the purpose of denying annual leave.

Employers are required to attempt to reach an agreement with employees in relation to annual leave and must not unreasonably withhold consent to an employee’s request to take annual holidays in accordance with section 18 of the Holidays Act.

Employers could request that employees returning from overseas obtain a negative COVID-19 test result before returning to work. All information surrounding the test results must be kept confidential in accordance with the Privacy Act.

We advise employers to have open and constructive discussions prior to an employee’s travel. This should communicate employer expectations and employee entitlements around Bubble travel. Communicating reasonably and in good faith to accommodate both the employee’s and employer’s needs in terms of remote working and contingency plans, and payment entitlements and obligations will create a happier and safer working environment for all.

 

Jessie Lapthorne (Partner) and Alesha Guard (Law Clerk) are part of Duncan Cotterill’s Employment and Health and Safety team

Disclaimer: the content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose. If you would like specific advice feel free to contact Jessie here.