Application of the Alert Level rules

1. Do all public sector agencies have to comply with the Alert Level rules?

No. Some border, emergency, enforcement and custodial services are exempt from the Public Health Response Order. The Order sets out the full list of exemptions.

Health, safety and wellbeing in the workplace

2. What are our health and safety obligations for people who are unable to work from home, eg, caseworkers, shift workers, frontline emergency services? And what do we need to do to protect them?

Obligations to essential workers unable to work from home are set out in the COVID-19 Public Sector Workforce Guidelines

3. How do we manage key person risk?

Key person risks should be identified in your business continuity plan.

4. What are my privacy obligations to employees in a pandemic?

Balancing the right of employees to privacy with health and safety obligations is front of mind for many agencies. The Office of the Privacy Commissioner (OPC) has a useful webpage covering key privacy issues and providing advice.

Information about vaccination status is personal information. The OPC has advice on the COVID-19 vaccination and privacy rights.

5. Are unions permitted to access a workplace at Alert Level 4?

Yes, but only if reasonably necessary to provide a service that cannot reasonably be delayed, for example because a delay would risk the health and safety of workers.

6. We have staff who are reluctant to work alongside colleagues who are not vaccinated, what should we do?

Take a similar approach to when an employee wishes to self-isolate when not required to, i.e.

  • take a health and safety risk-based approach to understand and investigate the concerns of their employee in good faith
  • consider the risks to the employee, those in their household or ‘bubble’ and to other people in the workplace
  • determine an appropriate response in line with employer and employee duties under the Health and Safety at Work Act 2015 and public health advice from the Ministry of Health.

You cannot require other employees to disclose their vaccination status so conduct the assessment on an assumption that colleagues are not vaccinated unless you know otherwise. If based on public health advice from the Ministry of Health you agree there is a reasonable risk to the employee, then mitigate this with other protection measures such as distancing and/or face coverings or alternative ways of working such as working from home.

If based on public health advice you conclude existing health and safety measures are adequate and there is no additional risk to the employee, consider what reasonable and practicable additional steps you could take to address the concerns. If there are no reasonable or practicable measures available then advise the employee that the health and safety measures in place are sufficient and instruct them to work normally.

7. Can we require that spacing in the office is set at 2 metres, and not require face masks in the office?

There is no legal requirement for face coverings to be worn in non-public areas. It is not necessary to provide spacing over and above that required by the 1 and 2 metre rules.

8. We have visitors coming into our workplace for meetings, do we need 1 metre or 2 metre physical distancing?

You need to provide 2 metre distancing when meeting with people from outside your agency, including where this is not a public area.

The 1 metre rule in the workplace applies only to workers of the business. Everyone else who enters a workplace must comply with the 2 metre physical distancing rule.

The Justice sector and courts and tribunals do not have to apply the 2 metre rule. For full details see Schedule 6 of the Public Health Order.

9. We have visitors coming into our workplace for meetings, are they required to wear a face covering?

Face coverings are legally required to be worn by every person in the public areas of courts and tribunals, local and central Government agencies, and social service providers with a customer service counter. In the case of courts and tribunals, a judicial officer may exercise discretion regarding the use of face coverings in the room where the hearing is held.

If the visitor is not in a public area, the legal requirement does not apply. However face coverings are encouraged for everyone whenever they are out and about, and especially when physical distancing is difficult.

Movement of people within and across Alert Levels

10. We need to rebalance staffing across localities during Alert Level 4, can we ask workers to travel to another locality?

Yes. If the work is required to deliver an alert level 4 business or service, travel between regions within the Alert Level 4 area is permitted. Agency chief executive will need to provide staff moving across regions with a letter of approval that includes detail of the operational need and timeframe it will be required for.

Agencies should engage early with staff and relevant unions if changes to work location are being considered.

The COVID-19 website has further information on regional travel.

11. Are we required to provide accommodation, or reimburse costs, for Alert Level 4 workers who choose not to return to their household bubble each day after work?

No, this is not required. However, agencies can consider such requests on a case by case basis. Take a risk-assessment approach to determining the reasonableness of the request.

12. We have people who we require to travel across the Alert Level 2/4 boundary. What are the responsibilities of the agency and individual to comply with the COVID-19 testing rule? When does this take effect?

If an agency requires a worker to travel across the alert level boundary for permitted work purposes, there are obligations on both the worker and the agency to comply with the testing rule.

An agency that requires a worker to travel across the boundary for a permitted reason must:

  • have systems and processes in place, so far as is reasonably practicable, to ensure that no one is required to travel who does not have evidence of a COVID-19 test in the 7 days before travel
  • enable workers to have the test during working hours if testing is available then.

If the test is done in working hours this should be treated as paid work time. If not in working hours, it should be treated as paid special leave.

Obligations on agencies come into force from 11:59pm Thursday 9 September 2021.

A worker who has permission to travel across the boundary must:

  • carry evidence of having had a COVID-19 test in the 7 days before travel, or if inappropriate to have a test, a certificate from a medical practitioner
  • produce the evidence when requested by an enforcement officer.

Obligations on workers come into force from 11:59pm Thursday 16 September 2021.

Agencies’ systems and processes should be designed to make it as easy as possible for the worker to meet their obligations:

  • ensure workers know when and where testing is available
  • have checks in place to ensure that evidence of the test is given to the worker
  • ensure workers are aware of their responsibilities.

The Ministry of Health and other agencies are working with industry to confirm the process for the testing requirement, regularly check the United Against COVID website for further advice.

Leave and pay

Refer to COVID-19 Public Sector Workforce Guidelines for further information

13. Is there paid special leave for employees in self-isolation?

Yes. Paid special leave is for an employee self-isolating in line with Ministry of Health advice, where it is not practicable for the employee to work from home.

14. Can public sector employers access the Government’s Wage Subsidy Scheme?

No. The scheme is not generally intended for public sector employers. Some Crown Entities and SOEs have exemptions allowing them to apply for the Wage Subsidy.

Unless the agency has an exemption, the Commission’s guidance on leave and payment applies for employees in various scenarios, including self-isolation.

15. What if someone doesn’t have any sick leave left?

If the employee is sick and unable to work, they should use their accumulated sick leave entitlement. If an employee is sick (or caring for a sick dependant) with COVID-19 and has insufficient sick/dependant leave, they may receive additional discretionary leave/paid special leave so they continue to be paid.

If an employee is well enough to work from home, they should be paid as normal.

16. Some of our employees have rostered overtime. Our usual practice with sick leave is to include payment for the unworked rostered overtime for the period. What approach should we take for special leave when an employee is self-isolated?

If a staff member is sick or caring for a family member with Covid-19, they would be entitled to their normal sick leave. This would include payment for rostered overtime that hasn’t been worked. If they are self-isolating, they would be on special leave with pay (or working from home if they were able), and therefore the rostered overtime payment does not apply.

Reimbursement

17. Should employees be reimbursed for travel costs when they are deployed to other workplaces or their normal travel option is unavailable to their usual workplace?

Travel costs when deployed to other workplaces

Employment agreements and/or workplace policies may provide for reimbursement if an employee faces additional travel costs when deployed to another workplace. In instances not covered by employment agreements or workplace polices, employers should consider appropriate reimbursement of costs incurred on top of normal travel undertaken by employees. This will vary for each employee and employers should consider reimbursement on an individual basis. The host agency should cover those costs for deployments.

An example is when an employee’s usual transport is a bus but they’ve been deployed to a worksite that is not near a bus route. The usual cost of getting to and from work is the cost of the bus fare to the employee’s usual workplace. The employee will now drive to work (no bus available) and incur parking costs. Appropriate reimbursement is the amount of parking costs and using a private vehicle minus the usual bus fare. Some organisations have set costs per kilometre in employment agreements for using a private vehicle. Inland Revenue prescribes kilometre rates for business use of vehicles that may be appropriate.

Changed travel options to usual workplace

If an employee is required at their workplace and their normal means of public transport has changed because of COVID-19, employers and employees may need to be flexible and consider altered start and finish times to meet any changed transport service timetables.

Agencies should consider reimbursement for any costs incurred on top of normal travel undertaken by the employee only if flexible arrangements cannot be agreed. This does not mean that an employee can expect to be reimbursed just because of reduced transport services.

18. Should employees be reimbursed for additional costs of working from home as a result of the COVID-19 pandemic? What are the tax implications?

Agencies should take a case-by-case approach to reimbursing employees, rather than consider a uniform payment. This is the preferred way to meet genuine need and respond to individual circumstance. Not all employees will incur increased costs overall by working from home (given that savings may arise from decreased use of transport, etc).

Inland Revenue has provided guidance on the taxation status where employers have made payments to reimburse employees for costs incurred from working from home. This advice does not promote such allowances, it just clarifies the taxation consequences if they are provided. Please ensure that you read the most current guidance as Inland Revenue has updated this a number of times over the last two years.

Recruitment and resignation

19. Should I continue with a recruitment process?

At Alert Level 3 and above, if it is a business-critical role, you should continue. But consider whether you may be able to redeploy existing employees or other public sector staff to fill this need. If it is not a critical role, you could postpone the process (if no offer and acceptance has occurred).

At lower Alert Levels you should continue as normal.

20. What do I do with people who accepted an employment offer made before the COVID-19 restrictions?

If they’ve already resigned from their previous employment and have agreed a start date, you are legally obliged to honour that, unless both parties agree otherwise. If they are due to start during the lockdown, you will need to discuss alternative ways of giving them work to start (but be sure to provide adequate on-boarding support, such as Code of Conduct advice, support to work remotely, health and safety advice and advice on information security).

21. How should I treat an employee who now wants to withdraw their resignation?

If an employee has resigned and later seeks to withdraw or rescind that resignation, you can choose to accept their request, but are not obliged to.

In considering whether to agree, you should weigh up whether doing so would impact others (such as where arrangements have been made to fill the position). Even where arrangements to fill the vacancy have been made, you may be able to retain the employee in an alternative position.

Fixed-terms and contractors

22. How should we treat fixed-term employees whose employment agreements are due to expire during an alert level that precludes them from being in the workplace?

You should consider whether you were likely to have extended this, if the workplace restrictions had not been in place. In many cases the reason for the temporary appointment remains, so an extension would be appropriate. Or you can consider whether you may be able to redeploy existing employees or other State services staff to fill this need. Otherwise, the fixed term can be allowed to expire, subject to necessary notice having been provided.

23. What should we do with our contractors when an alert level precludes them from being in the workplace?

Agencies should assess the priority of the work being carried out by the contractor. If it is priority work, working from home arrangements that meet H&S requirements should be considered. Agencies should refer to the contracts for services they have with individual contractors when considering what to do in the case that working from home is not feasible.

Some contracting agreements will continue even though work is not being undertaken, such as a cleaning contract for an office that is not in use. Again, agencies should refer to the contracts for services they have with individual contractors when considering what to do with these contracts. We encourage you to discuss the ongoing arrangements with the company supplying the services. Many of these companies will be able to access support for their staff through the Government’s COVID-19 wage subsidy scheme.

24. Are contractors eligible for sick pay?

Agencies should refer to the contracts for services they have with individual contractors. If contractors are sick, their usual arrangements should apply.

The Government’s COVID-19 wage subsidy scheme is available to self-employed contractors, employees of contracting organisations and sole-traders.

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