It seems that Mother Nature has flicked a switch and in the space of two weeks has given New Zealand the remnants of Cyclone Debbie and now Cyclone Cook is beginning to make the journey from North to South.
During and after natural disasters and adverse weather such as the deluge of rain we are currently seeing, employers and employees need to consider issues such as health and safety, emotional wellbeing and payment options.
The health, safety and security of people should be the main concern of all employers and staff. This comes before thinking about the interests of the club. Employers and employees should remember to keep in regular contact and deal with each other in good faith.
Pay and leave if an employee is not working due to an emergency or natural disaster
There are different reasons why an employee doesn’t work in this situation. These can include:
- An employer may be unable to provide work for employees who are willing and able to carry out their agreed hours of work.
- An employer may be unable to provide a suitable and safe workplace for employees who are willing and able to carry out their agreed hours of work.
- Employees can’t access the workplace because of restrictions not directly related to their own workplace and out of their employer’s control (eg road closures, safety issues relating to adjoining buildings, evacuation due to flooding or tsunami risk).
- An employee (or their dependant) is sick or injured and unable to work.
- An employee has to care for a dependant because usual care is unavailable.
- An employee is willing and able to work but their usual mode of transport is unavailable.
Employers and employees can't assume that time away from work in these circumstances would be either paid or unpaid without looking at the employment agreement, workplace policies and the specific circumstances. The employer and employee should look at their employment agreement to see if this type of situation is covered. If it’s not in the agreement, then it is up to both parties to talk about it in good faith and agree what the time away from work will be classed as.
If the employee's partner or dependent family member isn’t injured or sick but he or she requires care, e.g. because their child's school is closed, the employee can’t take sick leave. In some cases, employees may be able to continue to work while caring for their family, if the employer and employee agree to this arrangement. If it’s not appropriate or possible for staff to continue working, employees and employers will need to agree on what basis the employee is off work.
Where the club is open and work is available but the employee is unable due to weather to get to work?
In general, employees are not entitled to be paid if weather prevents them from getting to work where the workplace remains open with work available . An employee's transport to work is not the employer's responsibility. In these situations, employers may come to an alternative arrangement with employees. Such alternatives could include allowing employees to take annual leave, permitting work from home or providing alternative work) and flexible and or reduced hours. You do need to assess the situation though and determine whether employee could have made it into work but chose not to or whether the employee could truly have not made it into work safely.
Some employment agreements may also state that the employer may stop paying employees when the business is shut down or disrupted for reasons beyond the employer's control.
Where a club is unable to open must it continue to pay employees?
There is no easy answer to this question. Without a genuine safety issue, an employer cannot ‘stand down’ employees if there is no work and thereby not pay employees. Ready, willing and able employees have a right to work and be paid.
Options for leave and payment
- Annual holidays
- Anticipated annual holidays or additional annual holidays
- Using an entitled alternative holiday
- Special leave, either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
- Leave without pay
- Employees can take sick leave if their partner or dependents are injured or sick and they have sick leave available or the employer agrees to extra sick leave
- Other paid or unpaid leave either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
- Advance on wages
Whichever option the employer and employee agree on may depend upon the circumstances, including the nature and extent of the disaster and how long it lasts for. Once all leave entitlements under the Holidays Act 2003 and any negotiated additional leave or any anticipated leave entitlements run out, employees and their employers will need to consider further options in good faith (and consider the impact these options will have on business recovery later).
There are special rules for shift workers relating to the cancellation or early ending of a shift
If an employee is a shift worker and is willing and able to carry out their agreed hours of work, but their employer either
- can’t provide them with work, or
- can’t provide them with access to a suitable and safe workplace,
this is considered a cancellation of the employee’s shift.
Whether an employee is entitled to compensation from their employer for ‘cancelling’ these agreed shifts or ending a current shift early will depend on the terms of their employment agreement, the date of their employment agreement, and the specific circumstances of the cancellation.
If the date of an employee’s employment agreement was April 1 2016 or later, their employment agreement and employer must comply with the shift cancellation requirements of the Employment Relations Act 2000.
This means their employer can’t cancel one or more of their shifts unless:
- the employment agreement has:
- a reasonable period of notice for cancellation, and
- reasonable compensation payable to the employee if the employer cancels a shift without giving reasonable notice, and
- the employer either gives the employee the above notice or pays the reasonable compensation above, and
- cancelling the shift doesn’t breach the employment agreement.
If the employment agreement doesn’t have a valid shift cancellation provision and the employer cancels a shift anyway, the employer must pay the employee what they would have been paid if they had worked the shift.
Employers must also pay employees what they would have been paid if they had worked the shift if:
- the shift is cancelled but the employer doesn’t tell the employee until the start of the cancelled shift, or
- the rest of the shift is cancelled when the employee has already started the shift.
In this situation, the remuneration the employee gets when the shift is cancelled is included in their ordinary weekly pay and relevant daily pay.
If an employee is not entitled to compensation for shift cancellation their employment agreement may have other options relating to a disaster that apply to their situation. If none of these apply, they can still discuss options for leave and holidays with their employer in good faith. This may also apply when the current roster ends if the employer and employees have not agreed to a new roster.
An Employees' right to refuse work for health and safety reasons
An employee has the right to stop work, or refuse to carry out work if they think that doing the work would expose them, or anyone else, to a serious risk to health or safety from an immediate or imminent hazard.
Employees are obliged to discuss any health and safety concerns with their employer, and it could be that alternative arrangements are agreed upon. If an employee unreasonably refuses to work the employer is not obliged to pay the employee.
Checklist of things to think about;
- Take care of the health and safety of your team, yourself and your customers/clients.
- If the workplace isn’t safe, don’t require your staff to work there. Make sure it’s safe first.
- Staff communication and support are very important. Following a disaster, contact staff as soon as possible to advise them of the workplace situation and your expectations of them. Give them updates even if they are not required to be at work so that they know what is going on. Use texts and social media where possible to minimise overload of the telecommunications network. Remember staff may be under additional stress, provide them with support and help and show your concern.
- If public transport is unavailable or reduced, think about facilitating car pools among staff. Smaller employers could organise carpooling with other employers nearby. Consider any impact on staff getting to work on time and whether you can be flexible.
- Consider wider infrastructure issues (e.g. road closures, power outages or water restrictions) and the impact of these on staff getting to and from work and whether you can be flexible.
- In an extraordinary event, you may need to approach things differently. This may include temporarily changing your leave policy, letting employees work flexibly, or adopting a flexible approach to staff make personal phone calls to check on family during the workday.
- Think about any negative impact on staff pay (e.g. processing of payroll) and try to minimise this.
- Act in good faith and be honest with staff about the situation. You can provide them with an expert report showing the workplace is safe, this will reassure them. If an employee has a concern about the workplace being unsafe.
Talk to your insurers as soon as possible! They will be able to take you through your policy wording so that you know exactly what to expect (this may include payments to cover wages under a business interruption policy).
More information on employment and natural disasters is available on the Employment New Zealand website www.employment.govt.nz where you are in a situation where the club is forced to close for some time we recommend you seek legal advice as to the wording in your employment agreements and the options available to you.