COVID-19 – vulnerable essential service workers – employer questions

Employers of essential service workers that are 70 years + or have underlying health conditions and are immune compromised (Vulnerable Persons) are asking about their employment law obligations in the current circumstances. This is of course because Vulnerable Persons are the group of our population that the Government and medical professionals have very clearly stated should stay at home at the current time due to their higher risk factors if they contract COVID-19.

Currently, there three main questions arising for employers of Vulnerable Persons:

 1.       Can I refuse work to my Vulnerable Persons?

2.       If I refuse work to my Vulnerable Persons, what do I pay them?

3.       If my Vulnerable Persons (or my employees living with Vulnerable Persons) are refusing to work, what do I pay them?

Can I refuse work to Vulnerable Persons?

In usual circumstances, the answer would be no because to do so would be a breach of the employment agreement (to provide work) and would be discrimination (under both the Employment Relations Act 2000 and the Human Rights Act 1993) due to the Vulnerable Persons being treated differently from other employees due to their age or illness/disability (which are all prohibited grounds of discrimination).

However, employers of Vulnerable Persons in the current circumstances have significant health and safety concerns to consider. Employers of course have an obligation to ensure employees’ health and safety in the workplace so far as is reasonably practicable and at the current time employers are on notice (from the Government and medical professionals) that Vulnerable Persons are at a higher risk of harm in the workplace than other people. The degree of risk will of course depend on the particular workplace and where the Vulnerable Persons are situated within that workplace. For example, presumably a Vulnerable Person working on a supermarket checkout is going to be at a higher risk of contracting COVID-19 than a Vulnerable Person packing online grocery orders in the back dock of the supermarket away from members of the public and other employees.

What should the employer do in this situation?

Communicate, communicate, communicate. Both parties have an obligation to act in good faith and this includes being communicative and responsive. If an employer has a Vulnerable Person that wants to be at work, then I suggest that the employer has an open and honest discussion with their Vulnerable Person. This will include the employer outlining its concerns from a health and safety perspective of having the Vulnerable Person in the workplace given current Government and medical advice and giving the Vulnerable Person the opportunity to respond to those concerns. Perhaps underlying the Vulnerable Person’s desire to work are financial reasons and the employer may be able to go some way to assisting with this. We are expecting an announcement from the Government shortly to (hopefully) assist in these situations.

However, if the employer has a Vulnerable Person that wants to work for reasons other than finances – perhaps they just want to be out there assisting their community at this time – then the employer will need to make a call. If there is no ability to move the Vulnerable Person to a part of the workplace which reduces the health and safety risks to the Vulnerable Person then the employer will need to consider the risk, whether there are any options the employer has to reduce the risk to the Vulnerable Person and if not the employer will likely need to refuse work to the Vulnerable Person (this will of course depend on the workplace and the nature of work that the Vulnerable Person does). If the employer has had open and honest discussions with the Vulnerable Person, then this should reduce the risk of a claim from the Vulnerable Person for reasons unrelated to payment of wages/salary (discussed below). These are extraordinary circumstances and if an employer has genuinely refused work to a Vulnerable Person on the basis of the health and safety concerns then I would be surprised and disappointed if we got to a position that discrimination and/or breach of contract claims (presuming the employer has met its payment obligations – discussed below) are gaining traction (noting that there are some exceptions in relation to the discrimination provisions which would assist employers in the current circumstances).

If I refuse work to Vulnerable Persons, what do I pay them?

Currently, if your Vulnerable Person is ready, willing and able to work your obligation is to pay them their usual wage/salary. The pending Government announcement may assist here. It is looking likely that the announcement will be an extension of the current wage subsidy scheme to Vulnerable Persons. Of course there may well be a difference between the amount of the wage subsidy the employer receives and the amount it needs to pay its Vulnerable Person so could well be a financial cost to the business in refusing the Vulnerable Person work to keep them safe. This is a cost the employer will have to pay if it is not prepared to risk having the Vulnerable Person in the workplace (and I would suggest that in many essential services workplaces at the current time this would be a cost well worth wearing vs the potential cost (and I don’t just mean financial) of running the risk of having the Vulnerable Person in the workplace in the current circumstances).

If my Vulnerable Persons (or my employees living with Vulnerable Persons) are refusing to work, what do I pay them?

In this situation, the Vulnerable Persons and employees living with Vulnerable Persons would not be ready, willing and able to work and, therefore, the starting point is that they would not be entitled to payment. However, where employees have a founded concern for their health and safety in the workplace they can refuse to work. For Vulnerable Persons, and employees living with Vulnerable Persons, the refusal to work has some weight given the health and safety concerns. An employer should treat these cases on a case by case basis and in some cases the employer may well consider paid special leave appropriate. I am hopeful that the pending Government announcement will assist in this respect. It would be in line with the purpose of Alert Level 4 and of the wage subsidy to provide financial support to employers of these Vulnerable Persons (and people living with Vulnerable Persons) to enable them to remain at home in the current circumstances.

Watch this space

The situation will be clearer once the Government announcement is made. I will provide an update at that time.