News and Publications

 COVID ALERT LEVEL

The Government’s position in respect of vulnerable or “at risk” workers, the wage subsidy scheme, and the leave scheme has changed often to date. To stay current, we recommend revisiting the above sites daily.

• All non-essential businesses are closed and can only continue to carry out aspects of their business that can be carried out from home
• Essential businesses can continue to operate essential aspects of their business provided adequate health and safety measures are taken (refer below)

 DO WE HAVE TO CLOSE OUR BUSINESS?

Essential services can continue if the service can be carried out in a way that eliminates or minimises the risk of spreading COVID-19. Essential work that can be carried out remotely should be.  The Government has released an updated list of essential services/businesses.

If you are unsure whether your business is an essential service, the Government has advised that you should shut. You can seek advice from the Ministry of Business, Innovation and Employment’s (MBIE), who decides whether a business is an essential service or not.  You can contact MBIE on
0508 377 388 or email essential@mbie.govt.nz.

i.e. farms, meat processing plants, vets, tractor repair services, motorbike repair services etc.

MPI have published a non-exhaustive list of what it considers to be a key service. On the “Safe Practice” application form, MPI lists a number of different sectors including:

• Animal welfare
• Beverages (alcoholic and non-alcoholic)
• Biosecurity services
• Canned products
• Dairy
• Distribution (Dy/cold storage, transport)
• Eggs
• Farm supplies/farm contractors
• Fish/seafood
• Frozen fruits/vegetables
• Grain products (flour, breads, oats, seeds)
• Honey
• Horticulture (growers, packers)
• Infrastructure/supply chain (including packaging)
• Ingredients (sugar, salt, fats/oils)
• Inedibles (rendering, wool, hides/skins)
• Meals/prepared food
• Pet food/feeds
• Poultry meat
• Red meat
• Veterinary medicines / services

Businesses that have less than five employees and cannot achieve social distancing of your workers or businesses with more than five employees must have registered for Safe Practice before
5pm on Friday 27 March 2020.

• You can contact MPI on 0800 00 83 33 or by email info@mpi.govt.nz.

• How your production processes will protect your workers and the public by reducing the potential spread of COVID-19
• How you will ensure workers and others are observing physical distancing requirements
• What personal hygiene steps you have put in place for workers to reduce the likelihood of spread
• What existing and additional PPE you could introduce (see MOH guidance published on
  28 March 2020 about PPE for essential workers)
• What steps you are taking to limit access to your workplace
• How you will isolate your employees or parts of the workplace so that a virus spread could be contained if that did occur
• What working arrangements you have put in place for employees to report illnesses and suspected exposure to COVID-19 and to remove themselves from the workplace
• What actions you would take if an employee’s family member was suspected or confirmed as having COVID 19
• How you would ensure that employees at particular risk of COVID-19 identify themselves and are isolated from work
• How you will ensure that workers observe stay at home rules at the end of each working day

Employers owe HSWA obligations to workers working remotely from home and workers who cannot work remotely and are carrying out work for an essential service.

Working remotely

You will need to consider whether workers’ workspaces within their homes are appropriate and whether they have adequate technology and office equipment to ensure they can carry out work safely.  You have a duty to eliminate and minimise risks as far as reasonably practicable, and you should carry out an assessment (remotely) of the workplace with your workers.  The Government has published a helpful guide setting out considerations, accessible here.

Working for an essential service

Examples of practical steps to eliminate and/or mitigate the risk posed by COVID-19 for essential businesses that cannot operate remotely include:

• Implementing practices to limit the number of people that are interacting i.e. shift-based working, staggered meal breaks and flexible leave arrangements
• Encouraging physical distancing so that everyone stays at least 2 metres away from each other
• Not allowing employees at work that are unwell (the MOH has directed essential workers not to go to work if they are unwell and must not return to work unless they have been symptom free for 48 hours).
• Taking additional steps to ensure hygiene levels in the workplace are high i.e. adding more hand washing facilities, putting up signage instructing employees how to wash their hands in accordance with the MOH guidelines, putting hand sanitiser throughout the workplace, having the workplace cleaned more frequently including frequently touched objects
• Ensuring that there is limited and only essential contact with customers and suppliers. Advise customers and suppliers to access your premises only if they are well and only if it is essential, lock your doors and require customers and clients to call ahead and arrange a suitable time to ensure physical distancing. Use signage to that effect
• Following MOH guidance for personal protective equipment (PPE) for essential workers
• Supporting employees by keeping them informed and offering EAP if applicable. Communicating with employees frequently and checking in on their wellbeing.
• Discussing with employees whether they may be more vulnerable or live with someone who is considered vulnerable. For information on who is more “at risk” or vulnerable, refer below

 AT RISK OR VULNERABLE WORKERS

•  Over 70 years old (as older people often have underlying health issues that make them more vulnerable to COVID-19)
• With medical conditions that make them vulnerable to COVID-19, in particular
  • respiratory conditions like Chronic Obstructive Pulmonary Disease
  • heart conditions
  • high blood pressure
  • kidney problems
  • diabetes
• Undergoing treatment for cancer and blood conditions affecting their immune systems
• Who are pregnant and more at risk to some infections
• Without easy access to health care
• Who are residents of aged care facilities

Based on updated information from the Government (which we anticipate may change at some point in the future in order to protect vulnerable/at risk individuals) sending someone home or not offering them work due to their risk status may mean that you are obliged to pay them normally and you also run the risk of those individuals later raising an unjustified disadvantage or discrimination claim.  This is a complex issue, given that you have competing obligations under the HSWA, Employment Relations Act 2000, and the Human Rights Act 1993.

It is recommended that you talk to your employees that are more vulnerable and consider allowing them to stay home if that is what they would prefer.  If in doubt, they should contact their health providers and seek clarification around whether they are fit to continue to work or otherwise and pass that information on to their employers.

Health and safety obligations if employees want to keep working

If essential services vulnerable workers want to work, and you consider that you cannot take steps to adequately eliminate or mitigate the risks associated with COVID-19 given their more at-risk status, you could require them to provide you with evidence (at your cost) that it is safe for them to continue working during Alert Level 4 and/or propose to suspend them on pay whilst that medical evidence is obtained.

OBLIGATIONS FOR EMPLOYEES WHO CANNOT WORK

You can agree for them to use their annual leave and/or alternative days, but you do not have an obligation to agree.

If employees cannot work simply because they’ve been told to self-isolate by the Government and/or because your business is not an essential business, that does not entitle them to sick leave, even if they have agreed they will take this to be paid through an Alert Level 4 shutdown.

What is an otherwise working day?

You should try to reach agreement with your employee about whether the public holiday is an “otherwise working day” and take into consideration the employment agreement, work patterns, and other relevant factors including whether the employee works only when work is available, your rosters and systems and the reasonable expectations of the parties that the employee would work on the day concerned.  If you cannot agree, the Labour Inspector may determine whether a day would otherwise have been a working day, taking into account the same considerations set out above.

Which employees won’t be entitled to paid public holidays?

• Employees who are on unpaid leave throughout the lockdown period will not be entitled to payment for public holidays that fall during the lockdown because they cannot otherwise work.

Which employees will be entitled to paid public holidays?

• Employees that are:
  • working and would have worked on the public holiday but for it being a public holiday;
  • taking a period of annual leave on a public holiday; and/or
  • receiving the wage subsidy and/or a top up during the lockdown

For more information on how to go about paying employees for public holidays refer to sections 49 to 55 of the Holidays Act 2003.  

 MIGRANT WORKERS

For individuals whose visas expire between 2 April 2020 and 9 July 2020 (inclusive), INZ has granted them an extension to their visa until late September.  Individuals will be notified by INZ of this.

The migrant worker may then apply for an alternative visa allowing them to stay in New Zealand.

 EMPLOYEES WHO ARE WORKING 

1. Seek their agreement to vary their hours of work and/or rate of pay; or
2. Consult with employees about any changes that you need to make as you would with any restructuring process.

If employees cannot prove that an increase in costs is due to working from home, then they would not be entitled to any reimbursement.

Employers could, however, be generous and offer a “work from home” allowance.

The MOH says that the best defence against COVID-19 is basic hygiene measures, and it has published general guidance on its website about PPE for essential workers.

Employees should be reminded to:

• Cough or sneeze into their elbow, or to cover their mouth and nose with a tissue that they immediately dispose of
• Wash their hands with soap and water often and for at least 20 seconds
• Avoid close contact with people who are unwell
• Avoid touching their face
• Clean surfaces regularly
• Encourage customers to practice physical distancing

Employees wearing gloves while working must still follow the basic hygiene measures above and should wash the gloves with soap and water for at least 20 seconds before removing them. Employees wearing disposable face masks should be reminded to:

• Wash their hands thoroughly before putting on the mask
• Avoid touching the front of the mask
• When removing the mask:
  • if the mask has ties, to untie the bottom then the top tie to remove it from their face
  • to discard the mask once removed and to wash their hands thoroughly or use hand sanitizer immediately after removing and discarding of the mask

For essential workers that work in the health sector, further specific requirements apply. For more information, see the MOH’s website.

 FINANCIAL SUPPORT

The Government has published rules in respect of the financial support offered, which is subject to change without notice, from time to time, so it is not always possible to provide conclusive advice or guidance around how the rules apply.

This scheme has now folded and the Government has indicated it is considering a leave provision for essential workers

The COVID-19 leave and self-isolation scheme was introduced prior to the level 4 shutdown and was intended to financially supports workers to self-isolate, or stay home when sick with COVID-19 and was available for people that:

• Needed to self-isolate (they were registered with Healthline as having to self-isolate and/or needed to self-isolate in accordance with the MOH Guidelines)
• Could not work because they were sick with COVID-19; or
• Could not work because they were caring for dependents who were required to self-isolate, or who were sick with COVID-19.

The leave subsidy scheme was available for a period of eight weeks and employers could apply for this subsidy more than once.

The advice below is for businesses that applied for the wage subsidy on or before 3pm on Friday 27 March 2020.

The Government offered qualifying businesses $585.80 per week for individual employees that normally work 20 or more hours a week, and/or $350.00 per week for employees that normally work less hours, for a period of 12 weeks.  This was paid as a lump sum and employers could only apply for it once.

In short, to qualify for the wage subsidy the business needed to:

1. Be registered and operating in New Zealand;
2. Employ employees that were legally entitled to work in New Zealand;
3. Be able to show a decline in revenue of 30% for any month between January and June 2020 compared to the year before (including projected revenue) and the decline was attributable to COVID-19. Most businesses should have been able to meet this requirement given that non-essential aspects of the business would need to cease for most of April.   Businesses that applied for the former wage subsidy scheme could have:

• Contacted their bank and/or accountant to understand whether the business could meet this threshold
• Kept a paper trail

4. Have taken active steps to mitigate the impact of COVID-19. Again, businesses that applied for the former wage subsidy should have kept a paper trail of the efforts made to mitigate the impact of COVID-19. WINZ has provided guidance on the steps businesses needed to take to mitigate the effect of COVID-19 including:

• Drawing from your cash reserves (as appropriate)
• Activating your business continuity plan
• Making an insurance claim
• Proactively engaging with your bank
• Seeking advice and support from the Chamber of Commerce, a relevant industry association, and/or the Regional Business Partner programme.

5. Have made “best efforts” to retain employees and “best efforts” to pay them a minimum of 80% of their normal income for the subsidised period.  This likely means that the business must have taken all steps a prudent, determined and reasonable person would have taken to top up its employees wages to 80% but the business would not be required to go “beyond the bounds of reason” or be required to take steps that would lead to insolvency, or to continue with a course of action that would lead to the ruin of a business.

Businesses that applied for the former wage subsidy should have:

• Contacted their bank and/or accountant to understand their business’ profitability, and what the business could afford to do, especially where the business was an essential service and would be continuing to operate in the next 4 to 12 weeks in some capacity and generating revenue.  It would not be enough to simply pay the wage subsidy where the business is earning revenue.
• Maintained a paper trail of the “efforts” made to understand what the business could afford to do. If the business is not generating any revenue in the next four weeks, then the business may be justified in only paying the wage subsidy and topping up this amount with annual leave (with the employees’ agreement) if the business can afford to do so. If the business would be generating revenue over the subsidy period, then the business would likely need to do more. Regardless of what the business decides to do, it needs to be prepared to justify its decision-making process as there will be an audit/review period.

In submitting the application, the business would have needed to make acknowledgments and agree to specific terms.  The terms of the declaration you made at the time will likely be the terms that apply.

The advice below is for businesses that applied for the wage subsidy scheme on or after 4pm Friday 27 March 2020, or for businesses that are yet to apply.

The Government is offering qualifying businesses $585.80 per week for individual employees that normally work 20 or more hours a week, and/or $350.00 per week for employees that normally work less hours, for a period of 12 weeks.  This is paid as a lump sum and you can only apply once.

In short, to qualify for the wage subsidy the business needs to:

1. Be registered and operating in New Zealand;
2. Employ employees that are legally entitled to work in New Zealand;
3. Be able to show a decline in revenue of 30% for any month between January and June 2020 compared to the year before (including projected revenue) and the decline was attributable to COVID-19. Most businesses should have been able to meet this requirement given that non-essential aspects of the business will need to cease for most of April.

As there is a review process, businesses should obtain evidence of the actual or projected decline in revenue.  Businesses should:

• Contact their bank and/or accountant to understand whether the business can meet this threshold and retain information such as
  • bank statements
  • information from your accounting systems including details of sales revenue received, invoicing, cashflow and management accounting information for the relevant period(s)
  • GST returns filed
  • Recent sales data
  • Loss of expected or known work/bookings
  • Loss of contractual arrangements
  • Correspondence from customers that shows lost income will arise (i.e. cancellations)
  • Keep a paper trail

If the business is less than a year old, it will need to demonstrate the revenue lost against recent (or similar period) comparable figures (i.e. comparing March and February results rather than the prior year comparable figures).

4. Have taken active steps to mitigate the impact of COVID-19. Again, keep a paper trail of the efforts the business is or has made to mitigate the impact of COVID-19. WINZ has provided guidance on the steps you need to take to mitigate the effect of COVID-19 including:

• Drawing from your cash reserves (as appropriate)
• Activating your business continuity plant
• Making an insurance claim
• Proactively engaging with your bank
• Seeking advice and support from the Chamber of Commerce, a relevant industry association, and/or the Regional Business Partner programme.

5. Have made “best efforts” to retain employees and “best efforts” to pay them a minimum of80% of their normal income for the subsidised period.  This likely means that the business must have taken all steps a prudent, determined and reasonable person would have taken to top up its employees wages to 80% but the business would not be required to go “beyond the bounds of reason” or be required to take steps that would lead to insolvency, or to continue with a course of action that would lead to the ruin of a business. You should:

• Contact your bank and/or accountant to understand your business’ profitability, and what the business can afford to do, especially where the business is an essential service and will be continuing to operate in the next 4 to 12 weeks in some capacity and generating revenue.  It will not be enough to simply pay the wage subsidy where the business is earning revenue.
• Maintain a paper trail of the “efforts” made to understand what the business can afford to do. If the business is not generating any revenue in the next four weeks, then the business may be justified in only paying the wage subsidy and topping up this amount with annual leave (with the employees’ agreement) if the business can afford to do so. If the business will be generating revenue over the subsidy period, then the business would likely need to do more. Regardless of what the business decides to do, it needs to be prepared to justify its decision-making process as there will be an audit/review period.

In submitting the application, the business must make acknowledgments and agree to specific terms.  The terms of the declaration you make at the time will likely be the terms that apply.

If due to the cap you only applied for some employees you were retaining over the shutdown period, you can contact WINZ to enquire about lodging or amending your application.

To make an application, you will need to provide WINZ with:

• Your business IRD number
• Your business name as it appears in IR record
• Your business address
• Your New Zealand Business Number (if you do not have one, enter “0”s
• The names of your employees and whether they work over or under 20 hours a week
• Your employees IRD numbers and date of birth
• Contact details for your business

If you are a large employer (employing more than 100 employees) you can upload your employee data to a spreadsheet. See more information about large employer applications here.

As the online declaration is likely to continue to change, we recommend printing the declaration form and keeping file notes of advice received from Government department representatives to demonstrate compliance.

If your workers are seasonal workers and only work certain months of the year, you can still calculate an average by adding up their gross earnings for the relevant period and dividing by the relevant number of weeks worked.

The Government said on 27 March 2020 that employers needed to provide the whole of the subsidy allocated to an individual employee to that employee. This would have resulted in certain employees being paid more than what they would have earnt had they been working.

This position was then changed on 28 March 2020 so that employers can take a pooled approach to manage the wage subsidy. The Minister of Finance said that:

“…to be absolutely clear if a person’s income is normally less than the subsidy they can be paid their normal salary…this is particularly an issue for part time employees…[that] normally earn less than $350 per week. We urge employers to use normal hours in the period before COVID-19 to assess the amount to be paid”.

You have an obligation to notify WINZ within five working days if something changes to affect your eligibility. You may also need to repay amounts granted if you were ineligible for these.

There will also be a review and audit process. If employers have provided false or misleading information you could be liable to an investigation, including for offences under the Crimes Act 1961.

For more information click here.