Kia ora tatou
I have had a number of calls asking me what to pay employees who are unable to work because of flooding or bridge closures/traffic restrictions. I wish it was a straightforward answer, but it isn’t. Here’s the best overall advice I can give at this time – to go further, we will need to understand your specific circumstances.
First, you must consider the detailed wording of any relevant clause in your employment agreements and policies. This may dictate what happens – look for an extreme weather clause or a force majeure clause or a temporary relief from obligation to pay wages clause.
Second, you need to consult with affected staff. Don’t simply impose solutions, but as far as is possible, get them to agree with you on what is to be done regarding time off and payment.
Big picture principles are:
i. if your business can open and employees’ jobs are therefore available, but an employee cannot get to work – it is nobody's fault. Broadly there is no obligation to pay unless your agreements say otherwise - but there is an obligation to consult with staff over what to do - do they want leave, is there some other work around/partial work from home? Note that you cannot just decide to pay them leave (unless it is additional to their current entitlements) – they have to agree to that. However, there is also the element of employee loyalty - it may be worth paying additional special leave - at least for one or two days?
ii. If decide to close your business (in whole or in part) for a short period, then the situation changes and there is an obligation to consult over the closure and its impact - the decision to close may well mean you have to pay your staff. Consider, for example, the possibility that you decide to close until the bridge reopens, but an employee finds a way round and after one day is able to come to work. Now they can work and you are not offering work – so it would be you needing to pay, unless you have a clause that gives you the right not to.
iii. If you have consulted with staff and agreed to close (for example, until the bridge reopens) and agreed what, if anything, they are to be paid during that closure – then that is fine and overrides ii above. You should ensure whatever is agreed is put in writing – an email exchange will be fine in the circumstances.
You should also check to see if your insurance policies cover you against this situation.
If you have any specific situational questions, please give us a call.