In short - mostly there is no need to worry despite a High Court decision…
Paying employees who cannot attend work because they have been advised by the Ministry of Health to stay home while waiting for COVID-19 test results.
We have received a number of enquiries about how to pay an employee who has been advised by the Ministry of Health to get a COVID-19 test and then to stay home while they wait for the results. This can be for two or three days.
In the first instance, if your employee is sick, pay sick leave as normal.
If your employee is not sick and can work from home, pay (and work) as normal.
The problem is if your employee is not sick and cannot work from home. Unfortunately, the COVID-19 Leave Support Scheme does not cover this situation.
Employers will need to think about how they would respond in this situation and communicate this to their employees. There is no ‘right’ answer and no case law yet to guide us. Think about responding as a ‘good employer’ and the sorts of behaviour you want to drive. For instance, if paid leave is not an option, will that result in sick employees coming to work, thereby potentially putting your other employees in harm’s way – posing a H&S risk to the business?
Each situation should be assessed on a case-by-case basis and our consultants are happy to talk through your particular situation.
What if your employee refuses to take a COVID-19 test?
‘My employee is showing symptoms of COVID-19 and I have asked them to go and have a test to protect the rest of my staff and myself. They are refusing! What can I do?”
Under the COVID-19 Public Health Response Act 2020, the Government, (The Minister of Health and Director-General of Health) can order a test. As an employer, you can pass that order on and so comply with Government requirements, but you can’t enforce it.
You also have obligations under the Health and Safety at Work Act 2015 to keep your other employees safe. Therefore, it’s entirely reasonable for you to ask your employee to get tested, particularly if they are in a job that puts them in close contact with others.
If the employee does eventually agree to take a test, who pays?
The test itself is free, but any associated cost such as travel, time off work to take the test, would be covered by you, the employer.
If you need advice, or need help pulling together a policy or guidelines around COVID-19 testing, please give us a call.
Can I compel employees to attend work during Alert Level 2?
At Alert Level 2, all businesses can open if they can do so safely. This means that in most cases an employer is able to require that employees attend the workplace, subject to some exceptions:
- If an employee is sick, they should be encouraged to stay home. As would normally be the case, employees would be entitled to sick leave where they are sick or injured or where a dependent is sick or injured.
- Where an employee has been advised that they should stay at home because they, or someone they live with, is at high risk if they get COVID-19, they would not be required to attend the workplace but could be required to work from home. The COVID-19 Leave Support Scheme is available in this case.
As the implications for workplaces of COVID-19 continue, one of the issues that employers are grappling with is employees who refuse to undertake work.
In circumstances where an employee is unreasonably refusing to attend work, an employer may be able to commence a disciplinary process for the refusal to attend work. However, an employer should ensure they have carefully considered the reasons an employee is refusing to attend work before considering disciplinary action.
It is also important to remember that an employee can cease or refuse to carry out work under the Health and Safety at Work Act. In this case, the employee must believe that carrying out the work would expose them, or someone else, to a serious risk to their, or the other person’s, health or safety arising from an immediate or imminent exposure to a hazard.
Tread carefully and call us if you are facing this situation.