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Can an Employee be directed to go into work during Level 4 Lockdown?

20 August 2021 | Andrew "Andy" Ogilvie
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It looks as though we are going to be in some form of lockdown for some time going forward until this outbreak is contained.  It is important to remember that Employers and Employees are required to follow any lockdown requirements imposed by the Government under the various Alert Levels.

Are you an 'essential service'?

Some Employers will be operating essential services.  If their business is deemed to be an essential service they can require sufficient Employees as is necessary to operate the business to attend work.  That does not override the usual Health and Safety considerations that an Employer and Employees must follow in regards to operating a business in a  safe way.  For example, if an immune compromised worker is asked to attend work during Level 4 it is probable that any Employer requiring that worker to attend the worksite could face some employment consequences and the Employee may very well be within his or her rights to refuse what otherwise would be a lawful instruction.

Even in lockdown, the same rules apply

The usual rules of Employment Law continue to stay in place regardless of COVID shutdowns.  This will become more important if the shutdown extends past one week.  Employers will be able to access Government Relief Packages and Wages Subsidies if they qualify for those Grants and depending on how long we are locked down for it may be that Employers will seek to negotiate variations to the existing Employment Agreements between them and their Employees.  Most Employers should be familiar with this process which is unchanged since the last Covid lockdowns last year for us here in Canterbury. You can find further information on Relief Packages and Wage Subsidies here.

Do you 'have' to come in to work?

An Employee who is fit, not immune compromised and is employed in an essential service could likewise face employment consequence if he or she refused a lawful instruction to attend work to allow an essential service to be maintained.  Employers need to also bear in mind that essential services does not give carte blanche to full operations as normal.  Some industries will only be essential services for some of their operations, for example a big box retailer should only be selling items that are permitted to be sold during lockdown under Level 4 (items such as heaters, fans, blankets, bedding) and non-essential goods should not be being sold and staff would not be required to be called in to assist in the sale of non-essential goods.

We’ve seen a number of examples in the media recently accusing some major employers of requiring staff to come in for non-essential services, such as preparing online orders. Employers must be certain that any work being done onsite is essential.

That may very well mean that some staff would be required to attend work whilst others would not.  That is a question for the individual Employer to make but a prudent Employer would also take into account any genuinely held fears that a staff member may have about attending a work site.

Some worksites will be limited to operating only to receive or dispatch supplies or stock.

Additionally, Employers may have additional health and safety responsibilities such as enforcing mask wearing and social distancing in their place of business, to keep them and their customers safe.

If you have any doubt about whether you are able to require staff members to attend physical premises you should initially check the MBIE website, or seek some advice and guidance from our employment law team if you remain unsure as to the path forward.

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Article by:

Andrew "Andy" Ogilvie

Associate

Andy's varied background includes banking and hotel management experience, but law is his real passion. He began as clerk in the Courts in Wellington and worked his way up to Registrar of the Court of Appeal, before running his own business and studying law.

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