A lot has happened in employment law over the last few months. We have written this consolidated article to assist employers and employees in updating their knowledge of the changes.
1. Privacy Act 2020
By now employers will have come to grips with the changes from the Privacy Act 1993 to the Privacy Act 2020 (“the Act”). The enactment of the Act follows extensive reviews and has created a response to developments overseas in relation to data protection and breaches.
While much of the Act is the same in that most of the Information Privacy Principles still apply, the Act introduced a new privacy principle 12 dealing with when an employer may disclose personal information to a foreign person or entity. An employer must ensure that information being shared overseas will be protected by safeguards similar to that under New Zealand legislation unless the employee has authorized disclosure knowing that safeguards may not be in place.
The main changes include:
- Notifiable privacy breaches – employers need to report serious privacy breaches (those that are believed to cause or are likely to cause serious harm to an employee. Notification must be made to the employee affected and to the Office of the Privacy Commissioner as soon as possible. There are now fines of up to $10,000 for failing to notify.
- Compliance notices – the Commissioner is able to issue employers with compliance notices to require them to do, or stop doing, something to remedy their non-compliance with the Act or any Code of Conduct under another act.
- Access directions – the Commissioner is able to make binding decisions on complaints and these are enforceable in the Human Rights Review Tribunal.
- Criminal liability – for breaches of privacy legislation companies and directors can be issued with fines up to $10,000.
If they haven’t already, employers need to review their current systems and processes to ensure they are compliant with the new Act.
2. COVID-19 Vaccination
The COVID-19 vaccination is now rolling out across the country but its implementation has raised many legal questions. For employers, the main question is whether they can require employees to get the vaccination.
This is a difficult area of law particularly because the New Zealand Bill of Rights Act 1990 gives individuals the right to refuse medical treatment. An individual’s right needs to be carefully weighed against the need for employers to ensure a safe workplace under the Health and Safety Act 2015 and ensure that employees and the public are not at risk of contracting COVID-19.
The issue of COVID-19 vaccinations has not yet been considered by the Court however the reasonableness of mandatory vaccination will likely come down to the industry in which the employer operates. MBIE has also released some helpful guidance on what employers can and cannot do in relation to vaccinations.
In short, employers cannot require employees to be vaccinated but they can make it a condition that a vaccinated person must perform the role. Employers also cannot require an employee to divulge their vaccination status. However, an employer can draw an inference that the employee is not vaccinated if they put the employee on notice that they will be making that inference.
3. COVID-19 Travel Bubble
The travel bubbles with Australia and island nations are great for domestic tourism but questions have arisen and will continue to arise if there are outbreaks here in New Zealand or overseas while employees are on leave.
Another outbreak of COVID-19 will mean that the borders close at short notice. This could leave New Zealand employees stuck overseas indefinitely while they fight for a spot in managed isolation, and also facing potential costs for that stay.
We recommend that employers prepare policies that set out the employer’s expectations in relation to international travel. This will likely involve advising employees that travel will be at their own risk and cost (particularly if they are required to stay in a different country for an extended period of time), and requiring employees to advise the employer their applications for leave include overseas travel.
The worst-case scenario is that an employer may be forced to consider whether it can keep an employee’s role open for them. Therefore, there may come a point at which employment could be terminated in circumstances where an employee is stuck overseas and unable to work. However, before terminating an employer should undergo a full and fair consultation process, and any outcomes should be fair and reasonable in all the circumstances.
4. Bereavement Leave
On 1 April 2021, New Zealand extended its bereavement leave provisions to include miscarriage and still births. The changes entitle employees to three days’ bereavement leave if they, their spouse or partner, or any other relevant person (such as a surrogate, a person carrying an employee’s biological child or a person carrying a child an employee intends to adopt) has a pregnancy end by way of a miscarriage or still birth.
5. Sick Leave
The Government recently introduced a Bill to increase the minimum employee sick leave entitlement from five days, to ten days per year.
The Bill has recently passed its third reading in parliament, and this change is expected to take effect around mid-July 2021.
Employees will still only become entitled to sick leave after six months’ current continuous employment with an employer. However, this is expected to change early 2022 with the Government’s approval of Taskforce recommendations for employees to be entitled to sick leave from their first day of employment with an additional day accrued per month of employment until the entitlement is reached. It was also suggested by the Taskforce that sick leave should be taken in units of less than a day, at a minimum of a quarter of a day.
It is important to note that employee entitlements will not automatically double. It will depend on when an employees’ employment began and will increase at an employee’s next anniversary. Employees may still only carry over up to 20 days of sick leave a year, which should mitigate some concerns from small businesses about workers with high levels of accumulated sick leave.
6. Upcoming changes
The major change to look for in the next few months will be the introduction of a Bill to enact Taskforce recommendations in relation to an overhaul of the Holidays Act into statute.
The Taskforce made 22 recommendations which were jointly agreed to by union and business representatives.
The Taskforce’s changes will address the high degree of ambiguity that has made the Holidays Act difficult to understand and implement for employers. Employees will find it easier to understand their entitlements and will also benefit from some changes to leave entitlements.
A helpful summary of the proposed changes can be found here: https://www.mbie.govt.nz/assets/holiday-act-taskforce-govt-response-factsheet.pdf. While the recommendations have been accepted it still remains to be seen whether the recommendations are enacted as currently proposed once a Bill goes through the legislative stages.
If you have any questions about the above or need assistance with employment matters then please get in touch with our Employment Team.