The following guidance is copied from the Employment New Zealand Website
If a natural disaster or other serious event happens, the health, safety, and security of people should be the main concern of all employers and staff. This comes before thinking about the interests of the business or organization. Employers and employees should remember to keep in regular contact and deal with each other in good faith.
Contents
- The workplace after a disaster or emergency
- Pay and leave if an employee is not working after a natural disaster or emergency
- Employees’ right to refuse work for health and safety reasons
- Employee checklist of things to think about
- Employer checklist of things to think about
1. The workplace after a disaster or emergency
After a disaster:
- Always follow the advice of the Ministry of Civil Defence and Emergency Management – they’re the experts.
- Be careful, exercise care and good judgement at all times.
- If there’s damage to any buildings, be alert and cautious if you’re entering affected areas.
- Never enter areas cordoned off for safety reasons – you could put yourself or others at risk.
Building assessments and re-entry after a disaster
Following an earthquake or a significant aftershock:
- It’s primarily the building owner’s responsibility to ensure that buildings are assessed to determine whether they have withstood the event and remain structurally sound (in accordance with the Building Act 2004).
- Employers who occupy the building should follow the owner’s advice and be satisfied that the owner is performing their role. If an engineer or other competent professional advisor advises to not re-occupy the building, the building should not be re-occupied.
When an assessment is necessary
- If the local council advises building owners to conduct assessments following an emergency.
- If the owner or employer thinks the building might have been damaged in some way (you or others might see cracks in the building or if buildings similar to your building have encountered problems).
- If there are any known structural weaknesses in the building that previous assessments have identified and have been brought to the attention of owner or employer.
- If the aftershock is of similar size to the original earthquake. A reassessment should be made particularly if structural damage was observed, but after smaller events it may not be necessary.
- For more information read WorkSafe New Zealand’s(external link) position statement. The Health and Safety at Work Act 2015 also supports this approach. The owner and the employer are both PCBUs(external link), and have duties to consult and engage with each other, and to work together in relation to the health and safety of workers and others affected by their respective businesses.
Building re-entry
- If there’s any chance that a workplace may not be safe, employers should make a careful external visual inspection before allowing staff back in. If during an external visual inspection you see cracks or you have the slightest doubt about the integrity of the building, do not enter – get an expert assessment before you go in.
- If the employer’s external visual inspection is clear and damage is unlikely, you should still make an internal visual inspection before you let staff back in the building. If you have the slightest doubt about the integrity of the building, exit immediately and get an expert assessment report before you go in again. When making an internal visual inspection or entering the building for the first time, as a precaution you should:
- Be on alert as the contents of the building may have shifted and material may have fallen. There might be new hazards or risks (eg spilled liquids or damaged racking for stored goods, uneven or damaged floors).
- If you know there are chemicals or other dangerous materials in your workplace, make sure you’re protected with appropriate protective gear and be careful when you first go in. Stop – look – assess – and don’t take any risks. If you’re unsure or have any concerns, there are professionals who can help you make your workplace safe.
- Treat all services as live and avoid any exposed wiring.
- Make sure there is at least one clear exit (wedge open a door and keep your exit path clear from debris).
- Wear a suitable safety mask (in case of dust), safety helmet and safety googles.
- Take a torch if necessary.
- Have someone keeping watch outside who can go for help if you strike a problem and can’t get out.
- Assume any water eg dripping onto floors is contaminated with sewage.
- If you know or suspect that there may be hazardous dusts, such as asbestos or silica, in your workplace, contact WorkSafe New Zealand(external link) or seek professional assistance before entering. A simple dust mask may not project you from exposure and appropriate respiratory protective equipment must be selected, fitted and worn by someone with sufficient training to wear it properly and ensure that it’s effective.
2. Pay and leave if an employee is not working after a natural disaster or emergency
There are different reasons why an employee doesn’t work in this situation. These can include:
- An employer may be unable to provide work for employees who are willing and able to carry out their agreed hours of work.
- An employer may be unable to provide a suitable and safe workplace for employees who are willing and able to carry out their agreed hours of work.
- Employees can’t access the workplace because of restrictions not directly related to their own workplace and out of their employer’s control (eg road closures, safety issues relating to adjoining buildings, evacuation due to flooding or tsunami risk).
- An employee (or their dependant) is sick or injured and unable to work.
- An employee has to care for a dependant because usual care is unavailable.
- An employee is willing and able to work but their usual mode of transport is unavailable.
Employers and employees can’t assume that time away from work in these circumstances would be either paid or unpaid without looking at the employment agreement, workplace policies and the specific circumstances. The employer and employee should look at their employment agreement to see if this type of situation is covered. If it’s not in the agreement, then it is up to both parties to talk about it in good faith and agree what the time away from work will be classed as.
If the employee’s partner or dependent family member isn’t injured or sick but he or she requires care, eg because their child’s school is closed, the employee can’t take sick leave. In some cases, employees may be able to continue to work while caring for their family, if the employer and employee agree to this arrangement. If it’s not appropriate or possible for staff to continue working, employees and employers will need to agree on what basis the employee is off work.
Options for leave and payment
- Annual holidays
- Anticipated annual holidays or additional annual holidays
- Using an entitled alternative holiday
- Special leave, either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
- Leave without pay
- Employees can take sick leave if their partner or dependents are injured or sick and they have sick leave available or the employer agrees to extra sick leave
- Other paid or unpaid leave either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
- Advance on wages
Whichever option the employer and employee agree on may depend upon the circumstances, including the nature and extent of the disaster and how long it lasts for. Once all leave entitlements under the Holidays Act 2003 and any negotiated additional leave or any anticipated leave entitlements run out, employees and their employers will need to consider further options in good faith (and consider the impact these options will have on business recovery later).
There are special rules for shift workers relating to the cancellation or early ending of a shift.
Shift workers
If an employee is a shift worker and is willing and able to carry out their agreed hours of work, but their employer either
- can’t provide them with work, or
- can’t provide them with access to a suitable and safe workplace,
this is considered a cancellation of the employee’s shift.
Whether an employee is entitled to compensation from their employer for ‘cancelling’ these agreed shifts or ending a current shift early will depend on the terms of their employment agreement, the date of their employment agreement, and the specific circumstances of the cancellation.
If the date of an employee’s employment agreement was April 1 2016 or later, their employment agreement and employer must comply with the shift cancellation requirements of the Employment Relations Act 2000.
This means their employer can’t cancel one or more of their shifts unless:
- the employment agreement has:
- a reasonable period of notice for cancellation, and
- reasonable compensation payable to the employee if the employer cancels a shift without giving reasonable notice, and
- the employer either gives the employee the above notice or pays the reasonable compensation above, and
- cancelling the shift doesn’t breach the employment agreement.
If the employment agreement doesn’t have a valid shift cancellation provision and the employer cancels a shift anyway, the employer must pay the employee what they would have been paid if they had worked the shift.
Employers must also pay employees what they would have been paid if they had worked the shift if:
- the shift is cancelled but the employer doesn’t tell the employee until the start of the cancelled shift, or
- the rest of the shift is cancelled when the employee has already started the shift.
In this situation, the remuneration the employee gets when the shift is cancelled is included in their ordinary weekly pay and relevant daily pay.
If the employer doesn’t comply with the law in relation to providing reasonable notice or reasonable compensation for shift cancellation, then the employee may be able to raise a personal grievance.
If an employee’s employment agreement is dated before 1 April 2016, their employer has until 1 April 2017 to comply with the shift cancellation provisions of the Employment Relations Act 2000. Employees may still be able to claim compensation, depending on what their employment agreement says. Employees, who are unsure of whether their employer is required to compensate them, should seek further advice.
If an employee is not entitled to compensation for shift cancellation their employment agreement may have other options relating to a disaster that apply to their situation. If none of these apply, they can still discuss options for leave and holidays with their employer in good faith. This may also apply when the current roster ends if the employer and employees have not agreed to a new roster
Hours of workhas more information.
3. Employees’ right to refuse work for health and safety reasons
If it’s not safe to be at work, employees can stop work because of health and safety concerns under the Health and Safety at Work Act 2015. Alternatively, they may be able to take strike action under the Employment Relations Act 2000. If the employee and employer have made reasonable efforts but still haven’t been able to resolve the issue, they can use the problem solving framework under the Employment Relations Act 2000 or ask WorkSafe New Zealand(external link) for help.
Refusing to work under the Health and Safety at Work Act 2015
An employee has the right to stop work, or refuse to carry out work if they think that doing the work would expose them, or anyone else, to a serious risk to health or safety from an immediate or imminent hazard. A trained health and safety representative may also direct employees to stop unsafe work.
If you have stopped work because of health and safety reasons:
- You need to let your employer know as soon as you can that you have stopped work and why. This should include explaining what your concerns are to your employer eg point out or explain cracks in the building structure that you have seen.
- Your employer may give you safe and suitable alternative work at the same or a different location until it’s safe for you to return to your normal work.
- You need to make reasonable efforts to resolve the issue with your employer in a timely, final and effective way. You can’t just refuse to work and then do nothing. Both you and your employer must act in good faith.
- Once you’ve tried to resolve the issue with your employer, you don’t have to start work again if you still reasonably believe that you or another person would be in danger.
- Your employer can’t treat you adversely because you stopped work due to health and safety concerns. This includes being dismissed or made to resign, not having the same terms of employment, conditions, opportunities for training and promotion as other people with similar qualifications, skills or experience, or being threatened with any of these.
Worksafe New Zealand(external link) has more information about your rights and obligations.
Strike action and lockouts for safety or health reasons
Employees can take lawful strike action or employers can lock out employees, if they’ve reasonable grounds for believing that it’s justified for safety or health reasons.
Strikes and lockouts has more information.
4. Employee checklist of things to think about
- Take care of your own health and safety. This includes when you’re in the workplace and also if you’re at home (eg you may be suffering from stress or anxiety associated with the disaster). For many people getting back to work and normal life as quickly as possible can help to reduce anxiety and stress.
- Take care of the health and safety of your dependants. If you’ve a dependant who is injured or sick then you may be able to use dependant sick leave to care for them.
- If you’re not coming into work, do your best to make sure that your employer knows this and that you apply for the correct leave type to suit your situation.
- If your workplace is safe and you plan to return to work, make sure that:
- Your transport is organised – check out public transport availability, carpark building availability, alternative routes in case of road closures. See whether you can car pool with workmates, you could ask your employer to facilitate this for you.
- You continue to exercise care as you travel to work, even if your workplace is safe, you may be travelling through areas that have increased risk.
- If your workplace is not safe, you can refuse to work.
- Act in good faith and be honest with employer about how you are feeling and any concerns you have. If you are finding your return to work difficult, get help and support, your workmates (and employer) are probably experiencing similar feelings to you.
5. Employer checklist of things to think about
- Take care of the health and safety of your team, yourself and your customers/clients.
- If the workplace isn’t safe, don’t require your staff to work there. Make sure it’s safe first.
- Staff communication and support are very important. Following a disaster, contact staff as soon as possible to advise them of the workplace situation and your expectations of them. Give them updates even if they are not required to be at work so that they know what is going on. Use texts and social media where possible to minimise overload of the telecommunications network. Remember staff may be under additional stress, provide them with support and help and show your concern. This could include access to an employee assistance programme for counselling, having a team debrief, daily blog or email.
- If public transport is unavailable or reduced, think about facilitating car pools among staff. Smaller employers could organise carpooling with other employers nearby. Consider any impact on staff getting to work on time and whether you can be flexible.
- Consider wider infrastructure issues (eg road closures, power outages or water restrictions) and the impact of these on staff getting to and from work and whether you can be flexible.
- In an extraordinary event, you may need to approach things differently. This may include temporarily changing your leave policy, letting employees work flexibly, or a adopting a flexible approach to staff make personal phone calls to check on family during the workday.
- Think about any negative impact on staff pay (eg processing of payroll) and try to minimise this.
- Act in good faith and be honest with staff about the situation. You can provide them with an expert report showing the workplace is safe, this will reassure them. If an employee has a concern about the workplace being unsafe, ask them the specifics of their concern (eg have they seen cracks) so that you can investigate.