For doctors and nurses, the coronavirus pandemic is a major health crisis. For economists, a threat to the stability of financial markets. For politicians, a test of leadership. But for employers, the outbreak of COVID-19 might best be described as a force majeure.
What is a force majeure?
You may be unfamiliar with this term, but the chances are your boss knows it well. It refers to a situation beyond the control of ordinary people. Wars, earthquakes, hurricanes, and blackouts are all examples of a force majeure.
Most employment agreements contain a clause that applies to these scenarios. This clause could allow your boss to make changes to – or even terminate – your contract if it can’t be fulfilled because of an extraordinary event.
Well, the wording of a force majeure clause is important and will determine whether it applies to the ongoing pandemic.
What employment protections are available?
It may be difficult for your boss to argue that it’s impossible to fulfill the employment agreement when government assistance is available to help them do just that.
What government assistance is available?
A wage subsidy of between $350 and $583 per week, depending on hours worked, will be paid directly to eligible employers to encourage them to keep staff on the books in the coming months.
Can my employer make me redundant due to COVID-19?
The same rules apply for redundancies. An employer must show the business would continue more efficiently without you or that it can’t survive the lockdown period with you on the payroll.
Can my employer force me to take leave due to COVID-19?
But even if your job is secure in the long term, you might be asked to take leave or work reduced hours in the meantime. The question is whether you’re within your workplace rights to refuse to do so. Our employment law experts can advise you of your rights.
I’m already fielding calls from anxious workers unsure of whether they have the power to negotiate.
On this the law is clear. An employer can only force an employee to take leave if both parties reach an agreement. If no deal can be struck, your boss is required to give you at least 14 days’ notice.
Asking staff to accept a reduction in work also requires agreement between the employer and employee, but I would recommend seeking legal advice on your workplace rights before making a decision either way.
What if I can work from home?
It would be unreasonable to expect you to take leave if you can work from home. But that changes if your ability to be productive while working outside the office is reduced. In those circumstances, it may be reasonable to expect you to take leave.
What are my rights if the business restructures due to COVID-19?
Finally, you may have received from your boss a notice regarding the restructuring of the business. These are challenging times so your employer might try to implement these changes quickly but it’s important to remember they also have a duty to negotiate in good faith. That means allowing you reasonable time to consult a lawyer or support person who can be present at all meetings, whether in person or through teleconferencing.
You should also be aware that a business can’t simply use COVID-19 as an excuse to restructure. There still has to be a legitimate reason for the change. Again, employers should be exploring all avenues to stay afloat, including stimulus measures announced by the government.
Unsure of your workplace rights? Contact Shine Lawyers
Our lives as we know it have changed, seemingly overnight, but workplace laws remain the same. Know where you stand before you start a conversation with your boss and you might just find there is a path out of this mess that preserves your job in some way, shape, or form.
Pieter Venter is Head of Employment Law at Shine Lawyers in New Zealand
