August 2021 newsletter
We hope you, your family and your team are all safe and well in the latest lockdown and are making the best of this unexpected time at home in your bubble.
Unfortunately the Covid-19 Delta variant has arrived in New Zealand but on a positive note, the nation’s vaccine roll-out is accelerating.
These are uncertain times for us all, particularly for businesses - many of which were already facing a raft of challenges.
Ford Sumner has once again swung into full remote working mode and the team is well equipped to continue operating seamlessly in the coming weeks or months, as the case may be.
We wanted to reach out to you and as always, express that we are here to assist with your legal needs, but also highlight some important information.
Employment Update
With Covid-19 once again impacting the whole country and as this new lockdown progresses, we are fielding many questions around vaccinations in the workplace and other employment issues such as:
- what are an employer’s/employee’s rights regarding vaccinations in the workplace?
- can an employer insist on their employee’s being vaccinated?
- what is the position on paying staff while in alert level 4 when they are at home and cannot work?
Vaccinations
We recently published two articles on the first two questions which will tell you that the answer is not straight forward. Employers and employees will need to navigate different pieces of legislation, often adopting a first principles approach in working out what steps to take when contentious issues inevitably arise.
Three pieces of legislation immediately come to mind. Under the Health and Safety at Work Act 2015 (“HSWA”), a person conducting a business or undertaking (“PCBU”) must ensure, so far as is reasonably practicable, the health and safety of its workers while at work. The New Zealand Bill of Rights Act 1990 (“NZBORA”) ensures that you may refuse to undergo medical treatment, whilst under the Employment Relations Act 2000 (“ERA”) employers and employees must adhere to a number of obligations, including the obligation to act in good faith when dealing with each other. The Privacy Act 2020 also features.
In regard to existing employees the starting point is no – an employer cannot force their employees to be vaccinated. However, where appropriate, an employer may go through a consultation process regarding vaccinations and carry out a risk assessment on certain roles the employer considers the employee performing those roles ought to be vaccinated. If the risk assessment outcome is such that the position is deemed high risk, then an employer may be in a position to insist on vaccination. There are provisos though; one size does not fit all. In all other cases where the risk assessment is not high, the ability to enforce vaccinations on health and safety grounds will be very difficult to justify. An employer may find themselves legally hamstrung in the absence of a specific contractual provision requiring vaccination. See our articles (part one here and part two here) which address this question in more detail.
We formed the view some time ago that, whist you would need agreement do so with existing employees, it was permissible for an employer to include vaccination requirements into all new employment agreements with new staff. That position was confirmed by Workplace Relations Minister, Michael Wood on 26 August 2021 to Parliaments Education and Workforce Committee. These contractual provisions will need to be carefully worded and the requirement to vaccinate should be disclosed to intending employees during the recruitment process.
Paying staff in Level 4
The position on paying staff while in alert level 4 (and level 3 where applicable) while they cannot work has once again been in the news this last week or so. The starting position is that an employer must pay an employee in accordance with their employment agreement unless an alternative arrangement is agreed to. Lockdown has not resulted in employment law being put to the side. In saying that, where an employer seeks an employee’s agreement to reduce wages or salary during lockdown, for example on financial grounds, a failure to reach an alternative arrangement may result in the employer looking at other options, such as redundancy, which is often not in the employer or employee’s best interest.
There are many complexities to employment law. If there are any matters you would like to discuss we are happy to assist you so please get in touch.
Communication with landlords, tenants, customers and suppliers
As was the case during previous Covid-19 outbreaks, communications with landlords, tenants, customers and suppliers is more important than ever.
Negotiations may already be underway to work through what reduction in rent and outgoings may be required under relevant leases. See here for our previous article regarding lease considerations, when (and how) customers will pay you, and addressing your own arrangements with suppliers.
Of relevance, we also note that the first case regarding non-payment of rent following Covid-19 restrictions has now been considered by the High Court. Our article discussing the case can be found here.
We are experts in these discussions and documenting agreed arrangements, so don’t hesitate to contact Jaesen or Sarah if you need assistance with these matters.
Working on your business
Being at home in your bubble during lockdown can be a good time to review how you are operating your business and consider its future.
Now is a great time to review your employment agreements, business contracts, shareholder agreements, buy/sell agreements, intellectual property protection, and also your personal affairs (such as Trusts, Wills, and Enduring powers of attorney) to assess if they are still fit for purpose.
Ford Sumner offers automated documentation, including employment agreements, and other high volume use documentation used in business which can improve efficiency, consistency and comfort that all of your legal obligations are covered.
If you require assistance with any of these matters, please do get in touch.
New team members at Ford Sumner
We are pleased to introduce 3 new recent additions to our team.
Caylee Wood, Lawyer
Caylee gained a Bachelor of Law and Arts from the University of Otago in 2019 and after working as a law clerk was admitted to the bar in 2020.
She has joined the team to work across medico-legal and employment areas.
Caylee is passionate about supporting community initiatives where she volunteers her time to help others. She also enjoys travel (limited to NZ at present!) and both snow and water skiing.
Lucy Aitken, Law Clerk
Having completed her law degree at Otago University in 2020, Lucy is due to be admitted to the Bar in September this year.
While she's currently working closely with different teams across the firm, Lucy is developing her skills in medico-legal, employment, and wider litigation matters.
Lucy is passionate about the outdoors, spending her weekends going on walks in the various tracks Wellington has to offer, surfing at Lyall Bay in the warmer months, and snowboarding in the colder ones. She has also recently joined the Ford Sumner swim team and loves it!
Julia Sheehy, Legal/Administration Assistant
Julia recently joined our support team and plays a critical role in the smooth day to day running of our office. She works alongside the whole team providing a wide-range of legal support and administration assistance.
Watch this space for further updates from us on more positive changes at Ford Sumner in the coming weeks.
Contact us
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Click here for contact details for the wider team.