As we approach and contemplate our collective preparedness for a move to Level-3, it is difficult not to pause and also contemplate as to how much has changed since 25 March 2020. From the relative safety of our homes (which for many of us have also doubled as our new/temporary workspaces), much has likely changed in terms of the way we work.
Virtual meeting platforms, the significance of a solid internet connection, sharing workspaces with spouses/children/flatmates/parents/pets; these have become our temporary reality. They also point towards a possible permanent reality.
Yet also, many are quick to remind us, employment specialists included, some things, such as employment laws, have not changed. In the absence of legislative amendment and judicial direction, that is an entirely accurate starting position. Whether you also consider it a starting and end position also depends on whether you consider the wage subsidy scheme and the government-enforced lockdown have in any way affected the employment law landscape.
Put another way, our current employment legislation references the test for the actions of employers in certain circumstances, being “what a fair and reasonable employer could have done in all the circumstances at the time…..”
The question then becomes whether the impact of Covid-19 on the way we continue to work (whether this is at Level-4, Level-3, or Level-2 or otherwise) impacts on what is fair and reasonable.
To be clear, this is not an open invitation to employers to take liberties with their staff under the guise of a global pandemic, as some bad actors may have already done. It is more an acknowledgment that this is a very special set of circumstances we now find ourselves in (and in reality, the true consequences of which may not be fully appreciated for weeks or months). Precedent, the trusted tool of any lawyer, appears also to be in short supply.
There are certain aspects of lockdown, such as applying for a wage subsidy for example, that may be a largely box-ticking exercise. Others, such as early childhood teachers for example who are facing a return to work under Level-3 and raising valid concerns about their level of comfort around such a return, are considerably more nuanced.
As employers search for answers, remaining attuned to the way in which the lockdown has specifically impacted on your business, to the needs of your staff, and to the guidelines imposed by the government, will enable you to approach key decisions in the considered manner required in these extraordinary times.
 Section 103A(2) of the Employment Relations Act 2000
GQ insight piece written by Partner, Troy Wano.