Everyone
Leave during and after a natural disaster
During and after a disaster or emergency, employers and employees need to consider issues such as health and safety, emotional wellbeing and payment options.
If a natural disaster or other serious event happens, the health, safety and security of people should be the main concern of all employers and employees. This comes before thinking about the interests of the business or organisation. Employers and employees should remember to keep in regular contact and deal with each other in Good faith means dealing with each other honestly, openly, and without misleading each other. It requires parties to raise issues in a fair and timely manner, treat the other party with respect, and give the other party information which may be referred to in any future discussions.
Pay and leave if an employee is not working after a natural disaster or emergency
If the workplace cannot be accessed, is closed, or is open but the employee is unable to work, employers and employees should refer to their Employment agreements contain the terms and conditions of employment. Every employee must have a written employment agreement outlining the terms and conditions of employment. ‘Employment agreement’ has a broader meaning that includes all other documents and other agreements forming part of the contractual agreement between the employee and employer.
Generally, if the situation is not covered under a lawful provision within an employment agreement or workplace policy, an employer is required to pay an employee who is ready, willing, and able to work, if work is not available through no fault of the employee (for example, the workplace has no power). In these situations, it is important to act in good faith and apply common sense.
Options for leave and payment
Leave options are relevant where work can be performed but the employee is unable to work for personal reasons, such as:
- annual holidays
- anticipated annual holidays or additional annual holidays
- using an entitled alternative holiday
- special leave, either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
- leave without pay
- employees can take sick leave if their partner or dependents are injured or sick and they have sick leave available, or if the employer agrees to provide sick leave in advance or extra sick leave
- other paid or unpaid leave either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
- advance on wages.
Whichever option the employer and employee agree on may depend upon the circumstances, including the nature and extent of the disaster and how long it lasts for. Once all leave entitlements under the Holidays Act 2003 and any negotiated additional leave or any anticipated leave entitlements run out, employees and their employers will need to consider further options in good faith (and consider the impact these options will have on business recovery later).
There are special rules for shift workers relating to the cancellation or early ending of a shift. If an employee is a shift worker and is willing and able to carry out their agreed hours of work, but their employer either:
- cannot provide them with work, or
- cannot provide them with access to a suitable and safe workplace, this is considered a cancellation of the employee’s shift.
Working from home
An employer would be entitled to ask their employees to do all or some of their work from home, provided their home is safe and the employee can work remotely.
If an employee can work from home safely, with agreement from their employer, they must be paid, as normal, for every hour that they work as set out in their employment agreement, unless both they and their employer agree, in writing, that they will be paid at a different rate while they are working from home.
If an employee is unable to work from home, and it is unclear what they should be paid, the employee and the employer should consult the employment agreement, discuss it, and seek to reach agreement in good faith on what approach will be taken.
If the workplace is severely damaged and or it will be closed for a prolonged period, particularly when working from home is not suitable, then they should seek expert advice on their options.
Any agreement that is made should be recorded by both parties, particularly if it changes the terms and conditions in the employment agreement, for example, hours of work, or rate of pay.
If an employee is unable to work
If the natural disaster or emergency situation is not covered in the employment agreement and it is not appropriate or possible for the employee to work, it is up to both parties to discuss the situation in good faith and determine what basis the employee is off work.
The workplace after a disaster or emergency
After a disaster:
- Always follow the advice of the Ministry of Civil Defence and Emergency Management – they’re the experts.
- Be careful, exercise care and good judgement at all times.
- If there’s damage to any buildings, be alert and cautious if you’re entering affected areas.
- Never enter areas cordoned off for safety reasons - you could put yourself or others at risk.
CDEM Groups - National Emergency Management Agency(external link)
Building assessments and re-entry after a disaster
Following a flood, earthquake, significant aftershock, or other natural disaster:
It’s primarily the building owner’s responsibility to ensure that buildings are assessed to determine whether they have withstood the event and remain structurally sound (in accordance with the Building Act 2004).
Employers who occupy the building should follow the owner’s advice and be satisfied that the owner is performing their role. If an engineer or other competent professional advisor advises to not re-occupy the building, the building should not be re-occupied.
To find out if an assessment is necessary after a natural disaster, refer to WorkSafe New Zealand's position statement.
Health and Safety at Work Act 2015 - New Zealand Legislation(external link)
To find out about re-entering the building after a natural disaster, contact WorkSafe New Zealand.
Right to refuse work for health and safety reasons
If it’s not safe to be at work, employees can stop work because of health and safety concerns under the Health and Safety at Work Act 2015.
An employee has the right to stop work or refuse to carry out work if they think that doing the work would expose them, or anyone else, to a serious risk to health or safety from an immediate or imminent hazard. A trained health and safety representative may also direct employees to stop unsafe work.
If employees have stopped work because of health and safety reasons:
- They need to let their employer know as soon as they can that they have stopped work and why. This should include explaining what their concerns are, for example, pointing out or explaining cracks in the building structure that they have seen.
- Their employer may give them safe and suitable alternative work at the same or a different location until it’s safe for them to return to normal.
- They need to make reasonable efforts to resolve the issue with their employer in a timely, final and effective way. You cannot just refuse to work and then do nothing. Both the employees and their employer must act in
good faith .Good faith means dealing with each other honestly, openly, and without misleading each other. It requires parties to raise issues in a fair and timely manner, treat the other party with respect, and give the other party information which may be referred to in any future discussions.
- Once they’ve tried to resolve the issue with your employer, they do not have to start work again if they still reasonably believe that they or another person would be in danger.
- Their employer cannot treat them adversely because they stopped work due to health and safety concerns. This includes being dismissed or made to resign, not having the same terms of employment, conditions, opportunities for training and promotion as other people with similar qualifications, skills or experience, or being threatened with any of these.
If an employee and their employer have made reasonable efforts but still have not been able to resolve the issue, they can use the problem-solving framework under the Employment Relations Act 2000 or ask WorkSafe New Zealand for help.
Contact us - WorkSafe New Zealand(external link)
Alternatively, employees may be able to take strike action under the Employment Relations Act 2000.
- Take care of their own health and safety. This includes when they’re in the workplace and if they’re at home (for example, they may be suffering from stress or anxiety associated with the disaster). For many people, getting back to work and normal life as quickly as possible can help reduce anxiety and stress.
- Take care of the health and safety of their dependents. If they have a dependent who is injured or sick, then they may be able to use sick leave to care for them.
- If they’re not coming into work, do their best to make sure that their employer knows this and that they apply for the correct leave type to suit their situation.
- If their workplace is safe and you plan to return to work, make sure that:
- Their transport is organised - check out public transport availability, carpark building availability, and alternative routes in case of road closures. See whether there are options for carpooling with workmates or request their employer to facilitate this for them.
- They continue to exercise care as they travel to work, even if their workplace is safe, they may be travelling through areas that have increased risk.
- If their workplace is not safe, they can refuse to work.
- Act in good faith and be honest with their employer about how they’re feeling and any concerns that they have. If they are finding their return to work difficult, and would like to get help and support, their workmates (and employer) are probably experiencing similar feelings.
Take care of the health and safety of their team, themselves and their customers/clients.
- If the workplace is not safe, do not expect your staff to work there. Make sure it’s safe first.
- Employee communication and support are very important. Following a disaster, employers should contact employees as soon as possible to advise them of the workplace situation and their expectations. They should give employees updates even if they are not required to be at work so that the employees know what is going on. Using texts and social media where possible are channel options that can be considered to minimise overload of the telecommunications network. Employees may be under additional stress, so providing them with support and help and showing concern will be helpful. This could include access to an employee assistance programme for counselling, having a team debrief, daily blog or email.
- If public transport is unavailable or reduced, employers need to think about facilitating carpools for employees. Employers could organise carpooling with other employers nearby. Employers can consider any impact on employees getting to work on time and whether they can be flexible.
- Employers can consider wider infrastructure issues (such as road closures, power outages or water restrictions) and the impact of these on employees getting to and from work and whether they can be flexible.
- In an extraordinary event, employers may need to approach things differently. This may include temporarily changing their leave policy, letting employees work flexibly, or adopting a flexible approach to employees making personal phone calls to check on family during the workday.
- Employers can think about any negative impact on employees’ pay (such as processing of payroll) and try to minimise this.
- Employers need to act in good faith and be honest with employees about the situation. They can provide them with an expert report showing the workplace is safe and this will help to reassure the employees. If an employee has a concern about the workplace being unsafe, employers need to ask them the specifics of their concern (for example, if have they seen cracks) so that employers can investigate.