For doctors and nurses, the coronavirus pandemic is a major health crisis. For economists, a threat to the stability of financial markets. For politicians, a test of leadership. But for employers the outbreak of COVID-19 might best be described as a force majeure.
You may be unfamiliar with this term, but the chances are your boss knows it well. It refers to a situation beyond the control of ordinary people. Wars, earthquakes, hurricanes, and blackouts are all examples of a force majeure.
Most employment agreements contain a clause that applies to these scenarios. This clause could allow your boss to make changes to – or even terminate – your contract if it can’t be fulfilled because of an extraordinary event.
So what, if any, protections are available to you?
Well, the wording of a force majeure clause is important and will determine whether it applies to the ongoing pandemic.
It may also be difficult for your boss to argue that it’s impossible to fulfil the employment agreement when government assistance is available to help them do just that.
A wage subsidy of between $350 and $583 per week, depending on hours worked, will be paid directly to eligible employers to encourage them to keep staff on the books in the coming months.
The same rules apply for redundancies. An employer must show the business would continue more efficiently without you or that it can’t survive the lockdown period with you on the payroll.
But even if your job is secure in the long-term, you might be asked to take leave or work reduced hours in the meantime. The question is whether you’re within your rights to refuse to do so.
I’m already fielding calls from anxious workers unsure of whether they have the power to negotiate.
On this the law is clear. An employer can only force an employee to take leave if both parties reach an agreement. If no deal can be struck, your boss is required to give you at least 14 days’ notice.
It would be unreasonable to expect you to take leave if you can work from home. But that changes if your ability to be productive while working outside the office is reduced. In those circumstances, it may be reasonable to expect you to take leave.
Asking staff to accept a reduction in work also requires agreement between the employer and employee, but I would recommend seeking legal advice before making a decision either way.
Finally, you may have received from your boss a notice regarding the restructure of the business. These are challenging times so your employer might try to implement these changes quickly but it’s important to remember they also have a duty to negotiate in good faith. That means allowing you reasonable time to consult a lawyer or support person who can be present at all meetings, whether in person or through teleconferencing.
You should also be aware that a business can’t simply use COVID-19 as an excuse to restructure. There still has to be a legitimate reason for the change. Again, employers should be exploring all avenues to stay afloat, including stimulus measures announced by the government.
Our lives as we know it have changed, seemingly overnight, but workplace laws remain the same. Know where you stand before you start a conversation with your boss and you might just find there is a path out of this mess that preserves your job in some way, shape, or form.
Pieter Venter is Head of Employment Law at Shine Lawyers in New Zealand