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Curly Omicron Scenarios Q & A

Although the vast majority of employees will do what is technically and ethically the right thing, there will no doubt be some who will try not to. Here are a few of those possible scenarios, as well as the most common question about annual leave.

WHAT WOULD YOU DO - IF YOU WERE FACED WITH ONE OF THESE SCENARIOS?

In the first instance you need to try to reach agreement on the taking of annual leave. If no agreement is reached the employer can direct the employee to take annual leave entitlement subject to giving a minimum of 14 days’ notice. Note that it is only leave entitlement that can be directed, and not leave that is accrued but the employee has not yet reached their anniversary date.

They may be required by a health official to isolate for longer. Talk to them about the impact this will have on their pay which could include not being paid for the absence.

This is a potential disciplinary issue. Ask for evidence of the requirement to isolate. A good place to start is the eligibility criteria for the Leave Support Scheme. The employee needs to have been advised to isolate from:

a medical practitioner (as defined in the Health Act 1956); or

given through the National Investigation and Tracing Centre; or

from a medical officer of health (as defined in the Health Act 1956) or their delegate;

OR

the employee has advised you that they have been named as a person, or are the parent or caregiver of a dependent who has been named as a person, who must stay at home or in a managed isolation facility under:

a COVID-19 order made by the Director-General under s 10 or s 11 of the COVID-19 Public Health Response Act; or

a COVID-19 order made by a Minister under s 11 of the COVID-19 Public Health Response Act 2020; or

a direction made by a medical officer of health under s 70 of the Health Act 1956 (including where the employee has returned a negative test or is not required to get a test).

In the first instance ask them why this is. If it is because they have to look after sick isolating family members, then they are on sick leave and don’t have to work.

Try to resolve their reason for not wanting to work. If it can’t be resolved, unless you have a specific term in the Employment Agreement about the employee’s place of work, it may be difficult to require them to work from home. However, if they could work from home but choose not to, they are not entitled to be paid and are not eligible for the Leave Support Scheme either.

Let us know any other questions you have that we might include in future Q&A articles by emailing them to [email protected]

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