26 October 2005
Bird flu raises employment questions. No easy answers.
Employers and employees could be on untested ground should the predicted bird flu pandemic eventuate, according to Scott
Wilson, an employment law specialist with Duncan Cotterill.
Wilson said employers would have to determine how they would deal with a number of situations, many of which are
unprecedented in modern society, such as: … An employer's obligations in relation to Health and Safety … The ability to
require employees to stay home if they are infected … An employee's ability to refuse to attend work … Whether an
employer is obliged to provide payment in the above circumstances.
Workplaces could be completely disrupted by absences, which the Ministry of Health estimate could reach 50% of staff if
and when the pandemic is at its height.
"While many have taken the blasé approach to the "bird flu", putting it in the "the sky is falling" category with Y2K
and SARS, the potentially devastating effects of a pandemic in an employment setting cannot be ignored. Regardless of
the severity of the pandemic, if it hits, employers will face a number of issues which at the very least could give rise
to personal grievances, and at the worst could destroy Œthe workplace' as we know it", Wilson said.
Health and Safety
In order to comply with the Health and Safety in Employment Act 1992, employers and other people in charge of a
workplace are required to take "all reasonable steps" to provide and maintain a safe working environment. In doing so,
employers must identify and manage hazards then try to eliminate them, or isolate them if elimination is not possible.
"If the bird flu pandemic does indeed strike, the steps an employer is obliged to take will vary depending on the type
of workplace involved," Wilson said.
"Obviously the risk of infection will be greater in some workplaces, such as the service industry, than it will be in
"Employers will need to consider ways in which an outbreak of bird flu could be managed in their particular workplace,
taking into account how contact with other people can be kept to a minimum."
For example, Wilson said employers could explore the possibility of setting up systems so staff could work from home and
employees use intranet systems to stay connected to their colleagues.
"Employers will also need to ensure that they have adequate medical supplies such as face masks and gloves to help
reduce the risk of infection, although air conditioning will present some serious problems in many workplaces."
Requiring infected employees to stay home payment?
Wilson said the question of whether or not an employer is obliged to pay an infected employee who has been forced to
stay home from work raises some interesting issues.
"Generally an employer is obliged to pay an employee where that employee is told to stay home (such as in suspension
cases). However, in such exceptional circumstances when half of the work force is off on sick leave, there must be a
point where an employer is allowed to draw the line," he said.
"It may be that Parliament is forced to intervene and pass legislation on how to deal with issues that arise out of the
pandemic, not just in the employment sphere but in all areas of day to day life.
"An employer may decide to simply `close down' the workplace, just as many do over the Christmas and New Year period."
The Holidays Act gives employers the ability to "close down" the workplace for a fixed period after giving their workers
14 days notice. During this time, employees would be required to take their annual leave, whether or not they had any to
"Employers can have different closedown periods for different areas of their business, so where initially the risk of
infection is greater in one part of the business, potentially the employer would be able to just close down that area,"
Non attendance by employee payment?
The situation would be different where the employee is sick and decided to stay home as opposed to being directed to
stay home. Employees may take sick leave where they are sick (or a dependent is sick). An employee who takes sick leave
is entitled to be paid their contractual sick leave entitlement, and can also opt to take annual leave as sick leave
where sick leave is exhausted. However, in the event that both sick leave and annual leave are exhausted, and the
employee considers himself/herself still too sick to come to work, the employer does not have an obligation to continue
to pay that employee.
Employers may also face the situation where employees opt to stay away from work in an attempt to protect themselves
from becoming infected. Under the Health and Safety in Employment Act employees have the right to refuse to perform work
likely to cause serious harm. In the event of an employee exercising this right, employers will be faced with the
question of whether or not they are required to pay these employees, it may be that they will have to. This is something
that would need to be determined in light of the circumstances of each case, taking into account the risk of infection
and what a reasonable employer would have done.
Closure of workplace by health officials payment?
Under the Health Act, a Medical Officer of Health has special authority to try and contain the spread of infectious
diseases. This includes requiring people who are infected to be quarantined, and closing buildings, which are thought to
be contaminated. In the event of an employee being required to stay home or attend hospital, or the closure of the
building, the same sick leave and annual leave payment options apply.
"But once these options are exhausted, whether or not an employer has a continuing obligation to pay employees is
questionable," Wilson said.
"Potentially, it could be argued that since the employee is unable to fulfil his/her obligations under the employment
agreement, the employment agreement (and remuneration owed under that agreement) should be suspended until such time as
it is able to be resumed.
"Whatever an employer's legal obligations are, it is entirely possible that they will be simply unable to comply with
them. Employers plainly may not have the financial resources to sustain paying employees due to lower productivity
resulting in reduced profits."