Listen
With all but essential businesses closed for the lockdown - many people are either working from home or not working.
But should you be paid in full or only the wage subsidy? Can you be told to take annual leave? And what about essential workers - do they have to make the choice between pay or the health of themselves or others?
Lisa Owen put these questions to employment law advocate Ashleigh Fechney.
Do essential workers qualify for a wage subsidy if they cannot work either because they are sick themselves, or because they or someone at their home is high risk, or they need to look after their children?
If someone is sick and potentially has Covid-19 then they are eligible for what used to be the leave subsidy, and that has now been wrapped up with the wage subsidy. If you are sick and you have confirmed it may be Covid-19 then your employer should be paying you for two weeks and that can be reviewed.
If you are high risk there is currently no subsidy available to you and you will have to use your annual leave or sick leave, but I understand from the government's announcement today that there is an intention to release funding options.
Unfortunately parents who are essential workers but cannot work because they have to look after their children are slipping through the cracks. There is no funding, there appears to be no intention to provide funding and in this case they will have to use their annual and sick leave.
Can an employer still ask you to use annual leave even if they have applied for the wage subsidy?
The government has made it very clear that the expectation is that if an employer is receiving the wage subsidy then they cannot require an employee to use their annual leave instead of getting paid this wage subsidy.
If an employer refuses to provide the wage subsidy to an employee, where can they go?
At the moment there are not many options, but the government wants to set up a public list of companies that receive the wage subsidy and secondly a reporting line. The employer should not have to fear being made redundant if they make a complaint and hopefully callers to any phone line to dob in employers would be anonymous.
Can the employer still take deductions such as PAYE, KiwiSaver or student loans from the wage subsidy?
The purpose of the wage subsidy is to help the employer pay their obligations to the employee, so it will be subject to tax and all the same deductions will apply.
What are the options for someone who was supposed to start work and had a signed contract to do so, but the company now says there is no job but offered an ex gratia payment?
The Employment Relations Act states that an employee also includes a person who is intending to work. So this person would fall inside that category and they could look at a personal grievance for an unjustified dismissal, so long as that redundancy was not carried out fairly or reasonably. In my view this employer should have applied for the wage subsidy for this employee and the employee should have at least been given that.
An employer which provides an essential service but which does not qualify for the wage subsidy asks how to deal with a situation where some of its workers must stay home to look after dependants, but where they have a labour-based job so are not able to work from home?
The employer is only required to pay them their sick leave and once that is exhausted there is nothing else they need to pay. The second option is to look at getting casual staff for that period because it is too risky to dismiss these employees at this time and the employer may be at risk of discriminating against these employees if they do. If the employer does need to dismiss these employees they would be opening themselves to significant risk and should definitely seek legal advice.
A person whose paid parental leave is due to end and who met with her employer and was due to start back part-time at the beginning of April wants to know if she will still be paid from then.
She should be paid because there was an agreement for her to return to work part-time, but it would be worth talking to her employer about it. They should have applied for the wage subsidy to be able to cover the hours that she cannot work.
Will the paid parental leave eligibility be adjusted for those not able to work enough to meet the criteria of having to work 10 hours a week for an average of 26 weeks before the birth due to the lockdown?
There is not any guidance on this at the moment through the government. My hope is that the average is taken from the hours they would have worked rather than the hours they did work.
An employee asks whether it is acceptable for an employer not to inform them whether they are getting paid during this period or whether their wages have reduced to 80 percent.
This is unacceptable as employment relationships are meant to be founded on good faith and employers are supposed to be open about their situation. If this is not happening there is little the employee can do to compel the employer to reply to their queries. It is advised the employee waits for their first pay cheque and if they are not being paid properly, then seek legal advice to get the employer to respond.
A employee on a casual contract asks whether their employer should be applying for the subsidy based on the average number of hours worked until this point.
Yes they can, the Ministry of Social Development has allowed employers to apply for the wage subsidy for casual workers based on their average hours of work.