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Can Coronavirus keep New Zealand workers from work?

12 February 2020

Coronavirus has rapidly swept across the world in recent weeks. Alongside this has been a spread of fear, misinformation and, perhaps most unfortunately, racism and xenophobia.

The disease, which originated in the Chinese city of Wuhan, begins with symptoms like the flu or even a bad cold. This has led to run-of-the-mill ailments being treated with suspicion until it can be confirmed that the symptoms are not caused by the Coronavirus.

Virtually all aspects of society have been forced to consider how to respond to the virus and the risk it creates, such as death.

The Ministry of Foreign Affairs and Trade have recommended that New Zealander's do not travel to any part of mainland China and blocked foreign travellers from China from entering New Zealand.

Airlines have cancelled flights to China and airports around the world have introduced screening for travellers to seek to identify infected people before they enter the country.

The Ministry of Education has required all students who have returned from China or have been in contact with an infected person, to stay away from school for 14 days from their return.

Many employers who have employees likely to encounter the disease, such as airline, airport and health workers, have provided masks and other protective equipment for frontline staff.

The Ministry of Health has advised anyone who has travelled to China in the last 14 days to self-isolate, meaning avoiding all situations where you may come into contact with other people, such as work.

But as this virus spreads further and further, how will it be managed? Can employers keep workers away from work to stop the spread of the disease?

The Health and Safety at Work Act 2015 requires businesses to mitigate health and safety risks and protect their workers from them, so far as is reasonably practicable.

What an employer can do to prevent the risk of sickness in its workplace will often depend on the employees' employment agreements and the employer's policies.

Generally, employers can encourage employees to take sick leave if they are unwell, but they cannot direct employees to take sick leave.

But ultimately, there are ways for employers to keep a sick employee from the workplace. If an employee insists on coming to work and the employer is concerned about their risk to health and safety in the workplace, they can ask the employee to work from home or offer the employee special paid leave. If that is rejected the employer can suspend them on full pay (provided the employee gives feedback on whether they should be suspended).

The Ministry of Health has provided guidelines and information that may assist with decisions and Business NZ has suggested that employers could consider seeking compensation from the Government to cover lost wages.

Essentially, the employer must do what is reasonably practicable to protect other employees, while also being fair and reasonable to any workers it makes stay at home.

Unfortunately, there has been a sinister element to the virus crisis that indicates some employers are not being so reasonable.

Since the outbreak started there has been numerous media reports of racism directed toward Chinese people on the basis they are spreading the virus. A New Zealand-born doctor was yelled at to "go back to China", some taxi drivers have refused to pick up Chinese tourists and police are investigating a racist email sent by a parent calling Chinese children "disgusting virus spreaders".

Race Relations Commissioner Meng Foon has expressed disappointment in this abuse. "Anxiety and fear should never be a reason to discriminate and vilify Chinese or any other group," he said.

If an employer is driven by misinformation and racism and seeks to remove workers of certain ethnicities from the workplace out of fear that they may have contracted the virus, this is unlikely to ever be fair or reasonable. In fact, this would constitute discrimination as the employer is treating a group of workers less favourably based on their race or ethnicity.

However, a decision based on accurate information that the worker presents a risk to health and safety would be an entirely different matter.

New Zealanders are generally sensible people and most potentially dangerous situations are typically resolved by employers and workers talking and reaching a consensus.

In this particular case, this discussion may need to be informed by Ministry of Health guidelines or, if necessary, advice from a medical professional.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

Cullen - The Employment Law Firm and Women's Refuge are partnering to bring your business an understanding of the effects of domestic violence and the new laws assisting victims of domestic violence at work. Contact us to discuss your needs.

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