A time for compassion at work
OPINION: Whether or not we can blame it on Donald Trump, Monday’s rude awakening has had widespread and significant impacts across many parts of New Zealand.
Tragically, it has also resulted in casualties, and our thoughts are with all those who have been affected.
With many schools and businesses closing as a result of the earthquake, and Wellington’s CBD generally off limits, there are also employment-related impacts that will naturally raise a number of questions for employers and employees.
What if my boss tells me we’re closed for the day and not to come to work?
You should still expect to be paid for the day. If you are able and willing to work, but your employer has told you to stay home, you should not be financially penalised.
Check your employment agreement as well – some will contain express clauses relating to these types of situations.
Schools are closed and I have to stay home with the kids. Am I entitled to paid leave?
If your workplace is open for business, then you may need to take some form of leave, or agree to unpaid leave.
Many employers will be understanding and will not require you to take leave without pay, but you don’t have an automatic right to be paid for the time off.
In this regard, this is not a situation where either you or your dependants are sick, and therefore sick leave is not legally available.
An employer would be bound to consider a request to work from home reasonably and in good faith.
My employer has said I have to come in to work but I’m worried about safety. What can I do?
Your employer is responsible under the Health and Safety at Work Act for providing its employees with a workplace that is safe and healthy.
You can expect it to take that responsibility seriously by ensuring that the workplace is structurally sound, and any local or central government directions or suggestions are complied with, before requiring employees to return to work.
For employers, this might include having buildings or workplaces professionally assessed for damage, and taking note of whether infrastructure such as water, gas and electricity is fully operational.
If you don’t own or control the workplace, liaise with those who do.
Employees should communicate any concerns they may have to their employer in the first instance, and seek appropriate reassurance – most will do the right thing and take the necessary precautions before letting you know that you’re expected back to work.
Employees do have a right under the act to refuse to perform work or work in an environment they consider to be unsafe, but that is a last resort. In the event that the required threshold is not met, an unjustifiable refusal to work could have disciplinary consequences.
What if I feel stressed over the next few weeks and not up to coming to work?
Different people respond differently to natural disasters and these events can have ongoing and profound impacts on people.
Anyone who feels that they are mentally and emotionally unable to cope with work should attend their doctor and seek a medical certificate in the usual way. Sick leave is available for both mental harm and physical injuries or illness.
Employers should explore whether there are any steps that can be taken to support the employee. This could include employee assistance programme counselling or practical measures such as moving a work station.
My employment agreement has a force majeure clause – I think that’s got something to do with earthquakes. What does it mean for me?
Where businesses are unable to continue for extended periods of time, following an event such as an earthquake, these clauses become very important.
Force majeure clauses allow employment arrangements to be permanently terminated, or suspended, and potentially with immediate effect, if a natural disaster cripples the employer’s business.
It’s unlikely that any employer would or could rely on such clauses for one or two days of business disruption, but if the impact was ongoing, these sorts of provisions might justifiably be invoked.
How can we best help ourselves, on both sides of the fence?
Open and regular communication is a good start, as is approaching the situation in the spirit of understanding and cooperation.
This is not a business-as-usual situation and some compassion and flexibility will be required from both employees and employers.
Susan Hornsby-geluk is partner at Dundas Street Employment Lawyers. susan@dundasstreet.co.nz