Duty Bound

Everyone seems to be discussing bird flu these days, but mostly from a hygiene perspective. In my legal practice I have found that people also want to know what it might mean from an employment law perspective. 

Lets take a fictitious client, well call her Barbara, and see what a bird flu outbreak might mean for her business. Well say she runs a recruitment and temping business. 

Barbara hasnt done much so far to prepare her business for emergency situations like bird flu or a large earthquake, as she feels the bird flu threat is a bit like the Y2K (Year 2000) bug all over again. 

She has, however, recently decided to gather supplies like masks. She expects her business to continue during any outbreak, with the added pressure of finding temps for people away from work. 

She knows that some organisations have bird flu planning committees, but doesnt presently intend to go to that length for her business.

She is correct in that different organisations might need to prepare in different ways for emergency situations. The key outcome is that all employers must comply with their legal duties, including those under the Health and Safety in Employment Act 1992 to take all practicable steps to provide and maintain a safe working environment for employees. 

Barbara should also consider the following:

The Health Act 1956 and the Civil Defence Emergency Management Act 2002 authorise closing public places and workplaces, emergency powers, evacuations, states of emergency, and quarantine. There is now a Law Reform (Epidemic Preparedness) Bill before Parliament which proposes added powers for health and quarantine, and changes in respect of welfare and holiday provisions.

Employers must identify and manage workplace hazards.  Significant workplace hazards are to be eliminated, or if that is not practicable (as would be likely for a bird flu epidemic), isolated or minimised. If there is a bird flu outbreak, it is not enough to start to  comply with this duty at the time ofthe outbreak.

There might be situations where an employer is forced to close the business.  Employers need to know what their obligations are to pay staff if this happens, and staff need to know whatis payable. 

Employers should develop safety, leave and operational procedures for maintaining business continuity in any emergency. Arranging for staff to have vaccinations (if available) and providing protective gear such as gloves, masks and disinfectant may be necessary in  pandemics. Employee leave procedures can define when they must stay at home; what will happen if they have to care for a sick family member; and if they have to be medically cleared before returningto work.

As an employer cannot make significant changes to an employees terms of employment unless the employee agrees, operational procedures might deal with temporary flexible working practices, such as part-time work; requiring staff to work to a roster, outside their normal hours, or from home, to minimise human contact; or requiring staff to perform others duties, as well as their own, to cover absences.

One option is to have an Emergency Employment Code, to apply only if certain trigger events occur. As employees are legally obliged to ensure their own safety while at work, they should be involved in developing it.

If Barbara maintains her view that this is more than she had in mind, she is at risk of overlooking her duty as an employer to take all practicable steps to provide and maintain a safe working environment. 

These points dont relate only to bird flu. Hazard management must be a regular and on-going business practice, and practical, flexible working policies benefit the employer as much as the employee.    NZB

Penelope Ryder-Lewis is a partner with legal firm Bartlett Partners of Wellington. Email: [email protected]