The COVID-19 ‘Alert Level 4’ lockdown in New Zealand, and similar measures globally, have presented many challenges for workers and businesses. Along with those challenges, however, we are starting to see opportunities.
Many workplaces have introduced, at very short notice, new ways of working. To stay connected with both work colleagues and clients, there has been a dramatic up-take in the use of video conferencing tools, home offices have been hastily set up, and work patterns have changed. As we move to Alert Level 3 next week and look towards the future further loosening of restrictions, which of these changes might need to remain, and how can employers best manage, and better yet, utilise the post-lockdown ‘new normal’ working environment?
Changes to hours and place of work
The COVID-19 restrictions have forced many businesses and employees to change their working habits. While that’s been a challenge given the speed at which we’ve had to adapt, it has also shown us that there are other effective ways of organizing businesses and getting work done.
Since COVID-19 restrictions came into place, changes to working conditions have been introduced largely by government requirement (to comply with the Alert level instructions) or by consultation and agreement. Some of the non-mandatory arrangements may not have required a change to the terms of existing employment agreements, for example if an employer needed to change the working hours for essential workers (e.g. to allow for different shifts), the hours of work clause may have been worded broadly enough to allow for a level of variation.
When agreement to more specifically-worded terms was needed, many employers and employees have taken a pragmatic approach and agreed to adjust the necessary terms of the relevant employment agreement. Agreement was reached either orally or in writing and was designed to help businesses continue to operate as viably as possible during this challenging time and to help employees retain their jobs.
As government-set restrictions are gradually lifted, employers may want to retain some of the features of working in the COVID-19 environment in order to retain efficiencies and/or stay viable. For instance, to save costs on commercial leases, an office-based employer may seek to reduce the size of its physical premises and ask some, or all, of its employees to continue to work from home for at least part of their time.
To reduce the cost of its payroll, employers may also seek to reduce the hours its employees work, or retain indefinitely, what were initially intended to be temporary changes. If these changes are to be introduced, employers need to bear in mind:
any informal (normally oral) agreement to vary terms and conditions introduced during the COVID-19 restrictions period should be recorded in writing. Many employment agreements state that variations must be recorded in writing and even if there is no contractual requirement to do so, it should also be remembered that the Employment Relations Act 2000 imposes certain requirements:
the individual employment agreement (IEA) must be in writing
the IEA must include an indication of where the employee is to perform the work,
the employee’s hours of work need to be specified in the IEA: this includes the number of hours of work, the days of the week on which the work is to be performed, the start and finish times of work and any flexibility in these matters, and
the employee must be told of the right to independent advice relating to the intended agreement, be given a reasonable opportunity to seek that advice and consider any issues that the employee raises (and respond to them).
Recording these details in writing also avoids or limits the possibility of future disagreement concerning the details of these terms.
There may be situations where the employee’s position may need to be altered to the extent that a redundancy situation has arisen: the full-time position an employee had held has been disestablished because it is now surplus to an employer’s requirements and a new part-time role has been created. Often specific advice will need to be sought from a specialist in this area of the law prior to taking any action, to ensure legal requirements are met. In this type of scenario a process will need to be followed including consultation with the employee, reasonable notice given (the period of notice should ideally already be set out in the relevant employment agreement) and any contractual obligation to pay redundancy compensation complied with.
Flexible working arrangements – employee requests
For some, the lack of a commute, the comforts of home and a little extra time for the “life” part of the work/life balance have been a welcome change, though perhaps not always in such a concentrated form.
It’s likely that even if an employer does not see a particular need to retain COVID-19 style remote working arrangements in the medium or long term, some employees may have experienced benefits from the new arrangements and may prefer to continue working in an alternative way.
Since March 2015, the Employment Relations Act 2000 has allowed for all employees to request a variation to their working arrangements. A request can be made at any time. A ‘working arrangement’ means one or more of the following: an employee’s hours of work, days of work, or place of work.
Once a request is made, this area of the law requires employers to:
deal with such a request as soon as possible and no later than 1 month after receiving it, and
only refuse such a request if it could not be accommodated on certain grounds.
Under the law, the refusal of a request can only be on one or more of the following grounds:
inability to reorganize work among existing staff or to recruit additional staff
detrimental impact on quality or performance
insufficiency of work during the periods the employee proposes to work
planned structural changes
burden of additional costs
detrimental to meet customer demand.
An employer must give written notification of its decision on such a request no later than one month after receiving the request. It should be noted that the situation for employees bound by a collective agreement is different and a request must be refused if the employee’s working arrangements would be inconsistent with the collective agreement if the employer were to approve the request.
Health and safety obligations
As with any change to workplace procedures it is important to assess whether any changes to health and safety policies are required. Workplace assessments or checklists relating to employees’ set up of their home offices will continue to be required. For those who will be present in the workplace, physical distancing rules may remain in place for a significant period of time, and these need to be made clear to employees and they need to be effectively enforced.
Any increased hygiene practices may also need to be maintained and there will be a new focus on contact tracing, which will again change the way we interact with others. Meetings with people external to the organisation may in fact continue to be conducted remotely to minimise the risk of any transmission of the virus.
There will no doubt be new and as yet unthought of issues. Particular issues may arise out of increased use of certain tools, such as the possibility of privacy breaches if conducting video conferences from home with clients who present risks to workers due to the potential for them to behave in an unacceptable or even dangerous manner. Certain organisations that deal with high-risk customers or clients even have policies that prohibit the use of video conferencing to prevent privacy issues.
There is no doubt that COVID-19 has caused significant challenges to employers and employees alike. For many organisations there has been a need to be nimble and adaptable to an extent never experienced before. This need will not disappear once we move away from alert Level 4. It is important to consider future adjustments now and consider what the next steps may be. The key as always is to be prepared and anticipate what may be around the corner.
At the very least, the lockdown has given both employers and employees an opportunity to reflect on what is necessary and not in relation to their working behaviours. Being forced to work differently has taught many people new skills and has helped to identify strengths that were previously unthought of or unknown. It has also helped to bolster or even settle some arguments about whether home working and flexible schedules really work.
Although the restrictions are far from over and the future remains uncertain, the gradual progression back into socialisation gives both employers and employees the chance to help shape the future of work, hopefully for the better.
By: Michelle Hall Collins (Senior Associate) & Laura Chapman (Senior Associate)