Preparing for Omicron – Obligation to Pay Employees

19 January 2022

Key points are:

Employee has tested positive for COVID-19 and is required to isolate by a Health Official (see definition below) but can work from home and is well enough to do so – In this case the employee would be paid as normal, assuming they are able to perform their full duties from home; and do so.

Employee has tested positive for COVID-19 and is required to isolate by a Health Official but can’t work from home – In this case the employee’s inability to work is not the fault of the employer and so there is no obligation on the employer to pay the employee. The employee could take sick leave, and/or the employer could apply for the COVID-19 Leave Support Scheme (But see Note below).

Employee is a close contact of a person with COVID-19 and is required to isolate by a Health Official, but can work from home – In this case the employee would be paid as normal assuming they can, more or less, perform their full duties from home; and do so.

Employee is a close contact of a person with COVID-19 and is required to isolate by a Health Official, but can’t work from home – in this case the employee’s inability to work is not the fault of the employer. The employee could take sick leave, and/or the employer could apply for the COVID-19 Leave Support Scheme (But see Note below).).

Employee is a contact of a person who is a close contact of a person with COVID-19, but can work from home – In this case the employee is not required to self-isolate by a Health Official (because they are only a secondary contact) and so could attend work. First, the employee should be encouraged to work from home, in which case they would be paid as normal assuming they can, more or less, perform their full duties from home; and do so. On the other hand, if the employer decides to minimise the risk by requiring the employee to remain at home, the employee is entitled to be paid as usual.

Employee is a contact of a person who is a close contact of a person with COVID-19, but can’t work from home – In this case the employee is a “secondary contact” who is not required to self isolate by a Health Official, and so could attend work. The employee is not eligible for sick leave (because they are not sick or injured) and the employer can’t apply for the COVID-19 Leave Support Scheme because that is not available for employees who are secondary contacts of a person with COVID-19. If the employee elects to remain at home they are not entitled to payment. On the other hand, if the employer decides to minimise the risk by requiring the employee to remain at home, the employee is entitled to be paid as usual.

Health Official

In all cases where an employee says they are required to self-isolate you should ask for documentation from a recognised Health Official to confirm whether or not that is the case. In this context “Health Official” means:

A Medical Officer of Health, or their delegate (eg Ministry of Health)
A Medical Practitioner (eg GP)
The National Investigation and Tracing Centre.

If one of the above advises an employee to self isolate they will be sent documentation confirming that instruction.

Leave Support Scheme

This has changed recently. The key points are:

To be eligible the employee must not be able to work because they have been told to self isolate; and they can’t work from home.

The payment rates are the same as for the wage subsidy ($600 per week if working 20 or more hours per week and $359 if less than 20 per week).

- For one-week payment, employee must isolate for at least 4 days
- For two weeks payment, employee must isolate for at least 11 days
- For three weeks payment, employee must isolate for further 7 days.

Employees are eligible if:

- They have COVID—19,
- They are a close contact of a person with COVID-19,
- They are the parent/caregiver of dependant advised to self-isolate,
- They are at risk of severe illness from COVID-19,
- They have household members at risk of severe illness from COVID.

NOTE: If you apply for the Leave Support Scheme to subsidise the payments you will make to your employee, it is a condition of the scheme that you pay the employee 100% their ordinary wages or salary, unless there is mutual agreement in writing to pay the employee less than that amount, but in any event you must use your best endeavours to pay at least 80% of the employee's ordinary wages or salary.

If you want to pay your employee less than 100% of their ordinary wages or salary, clearly it is best to get their agreement to that in writing before you apply for the Leave Support Scheme. If the employee doesn't agree to that they are not entitled to any payment because it is not the employer who is preventing them from working. The same applies in respect of the Short Term Absence Payment.

Short-Term Absence Payment

This payment is to help businesses keep paying employees who:

cannot work from home, and
need to miss work to stay home while waiting for a COVID-19 test result.

There is a one-off payment of $359 for each eligible worker. The employer can only apply for it once, for each eligible employee, in any 30-day period (unless a health official or doctor tells the employee to get another test).

Rapid Antigen Testing

Omicron is expected to be widespread in the Community very quickly, which will have a devastating impact on businesses and supply chains due to the absence of staff who either have COVID 19 or are a close contact of someone who has COVID-19.

You should plan for that eventuality and take whatever steps you can to minimise the risk.

One option is to introduce a Rapid Antigen Testing programme. Some employers have already done so, with all employees being tested every day before they start work; and required to produce a negative result before they are allowed to enter the work area.

This option is the best way of keeping Omicron out of the work place. The problem right now is the availability of testing kits. Initially kits could be purchased from Roche Diagnostics, Abbott Rapid Diagnostics, Pantonic Health and EBOS Group. Now they can be purchased from any local distributor.

The tests take about 15 minutes to administer and produce a result. The key point here is that if employees are required to come to site 15 minutes before their normal start time, they must be paid for the extra time (which may be at overtime rates in some cases).

This type of test is not 100% accurate. It is less accurate than the PCR tests used by the Ministry of health, but is certainly better than doing nothing. Any person who returns a positive or non-negative test is required to have a PCR test at a MoH testing site. Any person displaying COVID symptoms should also be required to have a PCR test at a MoH testing site.

A Rapid Antigen Testing regime should form part of your Vaccination Policy, implemented following consultation, so that you can require all employees to participate.

Other actions

It’s one thing to keep Omicron out of the work place, but that’s only part of the issue because that doesn’t stop people from being infected elsewhere. Other actions to consider include:

Encouraging people who can work from home to do so.
Ensuring people get their booster shots as soon as they are able (currently 4 months after their second dose).
Providing information to employees from independent sources, they can take steps to ensure their household members, friends and other contacts limit their exposure to COVID-19.
Ensuring key employees who perform critical roles do not work in close proximity to others.
Working split teams to limit the spread if a person does become infected.
Cleaning smoko rooms etc between teams.
High level use of masks, with consideration given to use of the more effective N95 masks.
Practising safe distancing at all times.
Meticulous contact tracing.
Having hand sanitiser readily available.
Encouraging staff to be open about advising you when they feel unwell or have been in contact with a person who has COVID-19.
Being proactive in supporting employees in a range of ways, including:
- Access to EAP services
- Access to on-line tools for mental wellbeing,
- Promotion of confidential help lines,
- Regular check-ins with people who are suffering from COVID or who are required to self-isolate.

Require further information? Contact Tony 021 920 323, Justine 021 920 410, or Michelle 021 993 735.