Certain businesses are now able to open under Alert Level 3 and even more will go on to open under Alert Level 2.

Business owners will likely have looked forward to this since the lockdown began. Some of your staff, however, might not be keen to return to work right away.

What can you do if you have staff who can’t work from home and you’re in a position to give them work again, but they refuse? Do you still have to pay them? And is any Government support available if you do?

CAN YOU PROVIDE A SAFE WORKING ENVIRONMENT?

We previously explained that if work is available, staff generally need to show up to work to be paid. If they don’t show up, no pay.

That doesn’t mean you can open in any circumstances and expect staff to work. You still need to provide them with safe work. If you don’t, under the Health and Safety Act 2015 your staff have a right to refuse to work, in which case they are arguably still entitled to be paid.

If you can provide your staff with a safe working environment then it would be difficult for staff to argue you should pay them for not working. Your health and safety obligations include the requirements for operating under the current alert level and WorkSafe has further guidance for businesses on how to safely operate during this phase.

If you can provide a working environment in keeping with that guidance, your staff are unlikely going to have grounds to refuse to work for reasons connected with the workplace.

IS THERE A GOOD REASON FOR REFUSING TO WORK?

Even if you can meet the requirements for a safe workplace under the current alert-level, there are still circumstances where your staff could reasonably refuse to work and still be paid.

For example, it would not be safe for them return to work if they, or someone in their household, is at heightened risk from exposure to COVID-19.

The view that they should still be paid in these circumstances is supported by the fact that the Government has provided essential businesses with financial assistance to pay such at-risk staff. This financial support is to be extended to all businesses from 1 May 2020.

Based on the criteria for receiving that support, known as the COVID-19 Leave Support scheme, the minimum grounds for staff to refuse work would be if they:

• are at higher risk if they get COVID-19, and Ministry of Health guidelines recommend they stay at home while we’re in lockdown (and potentially longer);
• come into contact with someone who has COVID-19 and must self-isolate for 14 days (as required by Ministry of Health guidelines);
• have tested positive for COVID-19 and are required to remain off work until they’ve been cleared by a health professional to be released from self-isolation; or
• have household members who are at higher risk if they get COVID-19 and Ministry of Health recommend the worker also remains at home to reduce the risk to them.

This is why you should consult with staff who refuse to work before concluding you aren’t going to pay them. Unless you ask, it might not be apparent why they don’t want to come in, and they may well qualify under one of the above categories which might entitle you to assistance while continuing to pay their wages.

CONDITIONS OF THE COVID-19 LEAVE SUPPORT SCHEME

Much like the COVID-19 Wage Subsidy your business will need to meet certain requirements to receive this leave support, including facing financial hardship. 

The new leave support scheme differs from the Wage Subsidy in that it is granted for a four-week period. You will need to reapply again after the four-week period ends if you still meet the criteria. You should also note that you can’t receive both leave support and a Wage Subsidy for the same employee.

DO I PAY THE WAGE SUBSIDY TO SOMEONE WHO REFUSES TO WORK?

If your employee who refuses to return to work does not fall into a category covered by the COVID-19 Leave Support scheme, and there are no other reasonable grounds for their refusal, you are not obliged to pay them any wages.

That includes any amount of the Wage Subsidy that you might have received for the purpose of paying their wages. 

In that event, you’ll have a portion of the Wage Subsidy sitting in your bank account that you may not be sure what to do with.

A conservative approach would be to set that money aside with a view to repaying it back to the Ministry of Social Development, or or otherwise contacting the MSD to find out if you can be allowed to use it to pay the wages of other staff.

CONCLUSION

If an employee refuses to work, the general rule is you don’t have to pay them. But in the midst of a pandemic, you should slow down and check a few things first.

Be sure you are providing your staff with a safe working environment in accordance with the official guidance. But even if you are, your staff could still have good reasons not to come back to work right away and still get paid.

Consult with your staff before you come to any conclusions about whether you have to pay them. And if you do need to pay them, consider whether you can receive support under the COVID-19 Leave Support scheme.