Posted on: Feb 22, 2022
We are about to enter a time where many Employers and Employees are going to be impacted by the requirements to isolate due to the COVID-19 Omicron variant. A BIG question facing everyone is “Do I have to pay employees when they are isolating and what support is available?”
The first part is probably the most important – do you have to pay someone who is isolating? Remember, the normal requirements of employment law still apply. Therefore, if an employee is absent from work, whether they are paid or not will, depend on the type of leave they are entitled to. Sick leave? Annual Leave? Unpaid Leave? Unpaid Sick Leave? Etc…
If an employee is required to isolate, (following the public health guidance – now a legal requirement), then the reason they are isolating will have an impact on what the employee is entitled to.
If they are sick/symptomatic and awaiting a test result (or a dependant who is), they can use any sick leave entitlement they may have. If they have no remaining sick leave, the employee may wish to use their annual leave to ensure they are paid – you should make sure this is at the request of the employee and you capture this in writing.
If the employee is not sick/symptomatic or a dependant is not sick, (i.e. they are a close contact or household contact), then they are not able to use their sick leave as no one is sick. Again, if the employee wants to ensure they are paid, then if they choose to they can use any annual leave entitlement to cover the absence.
If someone is choosing to self-isolate but is not sick or is not a close/household contact, it starts to become more challenging. In this situation, they are self-isolating not in accordance with the public health guidance and it is a good idea to find out why they may be choosing to self-isolate. They likely would not be entitled to be paid for being absent, as they are not required under public health guidance to isolate and they (or a dependant) are not sick or a close/household contact.
Each employer will have to make their own decision as to how they want to handle these situations. Some employers may want to provide employees with “special paid leave” for these types of absences. Others may chose not to pay or may not be in a position to do so, and therefore that absence is likely to be unpaid.
Either way, you’ll need to ensure your wage and time records are accurate and record how this time is treated as your obligations to do so under the Holidays Act and Employment Relations Act still apply, and this can have an impact on future holiday entitlement payments.
Remember, employees are not generally entitled to unpaid leave without the approval of their employer.
If you are accessing any of the governments support schemes (Leave Support Scheme – LSS or the Short-Term Absence Payment – STAP) then additional obligations apply and you need to ensure you comply with these. Remember, these support schemes are not for the employee, they are for employers to enable them to keep their employees and not to lose jobs when dealing with this pandemic. Some of these obligations include:
The requirement to obtain the consent of the employee before applying for the government support
- The requirement to make “best endeavours” to pay at least 80% of an employee’s ordinary wage
- NOTE: while there is yet to be any clear definition of what “best endeavours” requires, our advice to clients is that if you are not going to pay at least 80% of the employees ordinary wage, you should be sure you are able to provide evidence as to why you cannot do so if necessary.
- To at-least pay the full subsidy amount if this is less than 80% of the employees ordinary wage
- Not to reduce any employees entitlements while receiving the subsidy support
- NOTE: reducing entitlements is different from using the entitlements they already have, provided they are used in accordance with the normal purpose
Each situation can differ, so it is important to remember your good faith obligations and talk to your employees about why they won’t be able to attend work, what they will likely be paid/entitled to if they are unable to attend work and what this could mean for them.
If you need assistance navigating through these tricky situations, get in touch with one of our associates today.
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.