A lawyer is warning employees that the age of working from home may be ending once the changes to the government's health protection measures take effect.
In a tight labour market, an employer may have to consider the risk of a resignation if they insist on a return to the office, a lawyer says. Photo: 123RF
Many of us have become comfortable with working from home in our pyjamas during the Covid-19 pandemic, but those days are now limited with Covid-19 restrictions being eased.
Employment lawyers say companies can lawfully demand their workers return to the workplace when most vaccine mandates are dropped on 5 April.
Jennifer Mills of Jennifer Mills & Associates said the government is saying there is now less risk in the community.
The country has high vaccination rates, many people have been exposed to the Omicron variant, Auckland has passed the peak with the rest of the country soon to follow suit.
That means employers are within their rights to insist staff return to their workplaces, she told Morning Report.
"Provided of course that there are the necessary other control measures in place such as mask use and distancing, it would be lawful for an employer to require an employee to return to work."
There may be exceptions for employees who are immuno-compromised or have other health conditions.
"But on the whole such a direction would be lawful and reasonable."
Asked if that meant employees could be sacked if they refused, she said the employer would have to balance his or her own desire to have employees working together in one location with the risk of having an employee resign over the issue.
"A termination needs to be looked at on a case-by-case basis."
Aotearoa has a tight labour market at present so an employer may be reluctant "to press the button" on dismissal, Mills said.
Staff need to remember that most employment contracts have a place of work stated.
"So an employee refusing to comply with that term [of an agreement] can ultimately lead to a situation where there is termination.
"But there is an obligation on an employer to consider reasonable alternatives; to consider things such as redeployment if the role can be performed from home."
Mills said employers would need to take several procedural steps before ultimately sacking the employee.
"And at that point litigation will most likely ensue."
"We would expect that there will be litigation in this area" - Lawyer Jennifer Mills
There have been no test cases on the issue in New Zealand, and employers have generally been accommodating about working from home.
Mills said she expected businesses to follow the examples of large companies overseas, such as Google, who have told employees worldwise they must return to their offices.
"We'll see that change. But I haven't seen employers taking the dismissal route yet but of course we would expect that there will be litigation in this area in the future."
Business NZ challenges some aspects of roadmap
Advocacy group Business NZ says ending Covid-19 mandates in most sectors is a step in the right direction.
From 5 April businesses will no longer be required to check vaccine passes and mandates will only be compulsory in certain sectors.
But chief executive Kirk Hope said the government needs to provide more clarity on some aspects of the Covid-19 roadmap, such as for the hospitality sector.
"It doesn't actually make that much sense to retain the seated limits ...it's still actually quite awkward to operate even with the 200 limit because of the seated requirements."
He contrasted the situation facing bars with allowing 737 aircraft with 360 passengers to fly into the country.
While some worry about superspreader events in indoor settings, Hope said that applied when the Delta variant was dominant and not many New Zealanders were vaccinated.
With high levels of vaccination and immunity now "the risk is much much less, that's why we are opening the borders."
File pic Photo: 123RF
Hope said the hospitality sector wants the right to make its own decisions on how to operate safely, including for its employees who have to isolate for seven days even as household contacts.
There are sufficient supplies of rapid antigen tests to ensure staff can return to work safely after having Covid-19 or isolating.
Hospitality operators may insist on employees testing negative twice as an extra safeguard, Hope said.
"They're looking for those decision rights with their employees as well."
"It doesn't actually make that much sense to retain the seated limits" Business NZ chief executive Kirk Hope
He understood why the government still seemed to be taking a cautious approach.
Hope said the country was having to make a massive adjustment from an elimination strategy with low levels of vaccination to living with the virus in the community alongside high levels of vaccination.