My business can operate with workers working from home – should I continue like this during Alert Level 3?
Yes. Your business cannot re-open and your workers should continue to work from home.
I cannot operate my business from home. Can I re-open under Alert Level 3?
It depends. The shift to Alert Level 3 involves a shift from the concept of “essential services/workers” to “safe businesses”. In other words, if you can ensure that your workplace can operate safely and have no physical contact with customers (including customers not being allowed on-site) then you can operate. You will need to ensure you are complying with all health and safety obligations under the Health and Safety at Work 2015 Act and ensure that you are meeting all requirements announced by the Ministry of Health and the Government regarding COVID-19 (for example, physical distancing, meticulous hygiene, cleaning and contact details to enable contact tracing if required). Please obtain specific employment law advice about whether your business can comply with these obligations.
My business provides close personal contact services to customers (e.g., hairdressers, beauty salons, massage therapists). Can I operate?
No, not under Alert Level 3.
What about construction?
The Government specifically advised yesterday that construction will be able to re-open if the owners of the individual businesses can ensure they have appropriate “safety” practices in place- as noted above.
Can I still make decisions about the staff and the structure of my business?
Yes, you can and indeed as a director you are required to act in the best interests of your company. This includes making appropriate decisions about the shape and structure of the business. This principle remains regardless of any lockdown. However, there will need to be substantive justification for the proposed restructure and you must ensure that you follow a procedurally fair process (i.e. any restructure needs to be substantively and procedurally fair). You will also need to consider any wage subsidy complexities that may come into play. Please give us a call to talk through your specific situation in relation to potential restructures.
Can I change how I pay my staff during the Level 3 Alert?
Payment to staff during the lockdown and at Alert Level 3 is complex and depends on a myriad of factors relating to your business, including:
the terms of the relevant employment agreement
whether your workers are working or not
whether you have essential workers
whether unions are involved
whether you have any "high risk" employees
whether you are using the Wage Subsidy to pay wages
when you applied for the Wage Subsidy (two different rules apply)
However, two principles remain constant. Firstly – you cannot unilaterally impose reductions to hours/pay on employees.This must be done by consultation/agreement. Secondly – wherever possible (and certainly if you applied for the Wage Subsidy after 4 pm on Friday 27 March 2020) you must obtain such agreement in writing. We also strongly recommend taking employment advice prior to implementing any pay or hour reductions.
Can I pay employees at different rates, depending on their function/output?
The answer to this yes, probably. Although again, anything with pay we recommend you obtain employment advice before implanting any proposed payment plan scheme.