Pay and leave during natural disasters and emergencies

During and after a disaster or emergency, employers and employees main concern is consideration of issues such as health and safety, emotional wellbeing and payment options for employees.  This comes before thinking about the interests of the business or organisation. Employers and employees should remember to keep in regular contact and deal with each other in good faith.

If the workplace cannot be accessed, is closed, or is open but the employee is unable to work during a natural disaster or emergency situation, employers and employees should refer to their employment agreement, workplace policies and the specific circumstances to determine leave and pay.  This is where the quality of your employment agreements come to the fore.  There may be force majeure clauses in your employment agreement, either way, all conditions of employment must be met by both parties.  When it can’t be met, that’s when things get a little more interesting and are not necessarily black and white.

Generally, if the situation is not covered under a lawful provision within an employment agreement or workplace policy, an employer is required to pay an employee who is ready, willing, and able to work, if work is not available through no fault of the employee. In these situations, it is important to act in good faith and apply common sense.

Working from home

An employer would be entitled to ask their employees to do all or some of their work from home, provided their home is safe and it is possible for the employee to work remotely.

If an employee is able to work from home safely, with agreement from their employer, they must be paid, as normal, for each and every hour that they work as set out in their employment agreement, unless both they and their employer agree, in writing, that they will be paid at a different rate while they are working from home.

If an employee is unable to work from home, and it is unclear what they should be paid, the employee and the employer should consult the employment agreement, discuss, and seek to reach agreement in good faith on what approach will be taken.

If the workplace is severely damaged and or it will be closed for a prolonged period, particularly where working from home is not suitable, then they should seek expert advice on their options.

Any agreement that is made should be recorded by both parties, particularly if it changes the terms and conditions in the employment agreement, for example hours of work, or rate of pay.

If the employee is unable to work

If the natural disaster or emergency situation is not covered in the employment agreement and it is not appropriate or possible for the employee to work, it is up to both parties to discuss the situation in good faith and determine what basis the employee is off work.

Options for leave and payment

Leave options are relevant where work can be performed but the employee is unable to work for personal reasons.

  • Annual holidays
  • Anticipated annual holidays or additional annual holidays
  • Using an entitled alternative holiday
  • Special leave, either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
  • Leave without pay
  • Employees can take sick leave if their partner or dependents are injured or sick and they have sick leave available. or if the employer agrees to provide sick leave in advance or extra sick leave
  • Other paid or unpaid leave either as provided for in employment agreements or workplace policies or by agreement between the employer and employee
  • Advance on wages

Whichever option the employer and employee agree on may depend upon the circumstances, including the nature and extent of the disaster and how long it lasts for. Once all leave entitlements under the Holidays Act 2003 and any negotiated additional leave or any anticipated leave entitlements run out, employees and their employers will need to consider further options in good faith (and consider the impact these options will have on business recovery later).

Employers cannot make changes to an employment agreement

An employer cannot make changes to an employees employment agreement, including hours of work, wages or salary, or make employees do tasks that are unrelated to their job, without talking and acting in good faith and both parties agreeing to it. All changes to an employment agreement must be made in writing and agreed between both parties.

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