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Employers have the right to ban working from home – lawyer

A lawyer is warning employees that the working-from-home age could end once changes to government health protection measures take effect.

In a tight labor market, an employer may have to consider the risk of a resignation if they insist on returning to the office, a lawyer says.
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Many of us have gotten used to working from home in our pajamas during the Covid-19 pandemic, but those days are now limited as Covid-19 restrictions are eased.

Labor lawyers say companies can legally require their workers to return to the workplace when most vaccination mandates are dropped on April 5.

Jennifer Mills of Jennifer Mills & Associates said the government says there is now less risk in the community.

The country has high vaccination rates, many people have been exposed to the Omicron variant, Auckland is past the peak and the rest of the country will soon follow.

This means employers have the right to insist that staff return to their workplaces, she said. morning report.

“Provided of course that the other necessary control measures are in place, such as mask-wearing and distancing, it would be legal for an employer to require an employee to return to work.”

There may be exceptions for employees who are immunocompromised or have other medical conditions.

“But overall, such a directive would be legal and reasonable.”

Asked if this meant that employees could be fired if they refused, she said the employer would have to balance its own desire to have its employees work together in the same place and the risk that a employee resigns because of this problem.

“A termination must be considered on a case-by-case basis.”

Aotearoa currently has a tight labor market, so an employer may be reluctant to “push the button” on layoffs, Mills said.

Staff should remember that most employment contracts mention a place of work.

“Thus, an employee refusing to comply with this clause [of an agreement] may ultimately lead to a termination situation.

“But an employer has an obligation to consider reasonable alternatives; to consider things such as redeployment if the role can be played from home.”

Mills said employers would need to take several procedural steps before ultimately firing the employee.

“And at that point litigation will most likely ensue.”

There hasn’t been a test case on the issue in New Zealand, and employers have generally been accommodating about working from home.

Mills said she expected companies to follow the lead of big companies overseas, such as Google, telling employees around the world they needed to return to their offices.

“We will see that change. But I haven’t seen any employers go the redundancy route yet, but of course we expect there will be litigation in this area in the future.”

Business NZ challenges some aspects of the roadmap

Advocacy group Business NZ says ending Covid-19 warrants in most sectors is a step in the right direction.

From April 5, businesses will no longer be required to check vaccination passes and warrants will only be mandatory in certain sectors.

But chief executive Kirk Hope said the government needed to provide more clarity on certain aspects of the Covid-19 roadmap, such as for the hospitality sector.

“It doesn’t really make sense to keep the seated limits… it’s still quite difficult to operate even with the 200 limit due to the seated requirements.”

He compared the situation facing bars by allowing 737 planes with 360 passengers to fly in the country.

While some worry about super-spreading events in indoor settings, Hope said this applied when the Delta variant was dominant and few New Zealanders were vaccinated.

With high levels of vaccination and immunity now “the risk is much less, that’s why we are opening the borders”.

Cheerful friends in the pub.  Drink beer, talk, have fun.  Meet friends after work

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Photo: 123RF

Hope said the hospitality industry wants the right to make its own decisions about how to operate safely, including for its employees who must self-isolate for seven days even as household contacts.

There are sufficient stocks of rapid antigen tests to ensure staff can return to work safely after having Covid-19 or self-isolating.

Hotel operators can insist that employees test negative twice as an added protective measure, Hope said.

“They also seek these decision rights with their employees.”

He understood why the government always seemed to take a cautious approach.

Hope said the country needed to make a massive adjustment from a strategy of elimination with low levels of vaccination to living with the virus in the community alongside high levels of vaccination.