CORONAVIRUS / COVID-19 AND THE WORKPLACE - Employee questions answered

7 Apr 2020
Author: DTI Lawyers

There is a lot of guidance for employers about how to manage through the impact of COVID-19, but scarce information for employees. In this article, we summarise the frequently asked questions employees want to know.

If I can work from home, what should my employer pay me?

It will depend on whether you are able to work your normal hours and what you and your employer have agreed to. Where you are able to perform your full role and normal hours from home you should be paid your normal income unless you have agreed otherwise.

You should be up front and honest with your employer about your ability to work from home. this may be because you have dependants at home that you are required to care for. However, where an employer assumes you will not be able to work from home (and therefore alters your hours or pay) because you have children and will need to care for them during this time, this may be considered discrimination. Such a decision should not be unilaterally imposed on you.

If you are not able to perform your full role but can perform parts of it, or will not be able to work your normal hours from home, you and your employer may agree to the amount of remuneration you will receive on that basis.

It is important to remember that an employer cannot change your hours, your pay, or your conditions of work without your agreement, unless they undertake a restructure. Where an employer undertakes a restructure (this can involve changes to your hours, duties or disestablishing a position) an employer must follow a fair and reasonable process which will involve consultation with you if your position is potentially affected by the restructure.

If your employer has raised concerns about its ability to pay you, have conversations with your employer about how they’ve reached that view, any alternatives including whether they have applied for Government assistance (i.e. the wage subsidy), and how much they can afford to pay you during this time. Encourage your employer to keep those lines of communication open.

Where your employer qualifies for the wage subsidy, your employer has an obligation to pass on the full amount of the wage subsidy and is required to use their best endeavours to pay at least 80% of your ordinary wage/salary.

If your employer qualified for the wage subsidy and you would normally earn less than the subsidy, the employer is not required to pay you the full subsidy but should pay you your normal wage/salary.

Remember that there are many reasons why an employer may not wish to apply for the subsidy or may not be eligible, but it’s alright for you to ask whether they are/are not applying, and why.

If my work is restructuring what are they allowed/not allowed to do?

An employer is entitled to restructure their business how they see fit, as long as the reason for the restructure is genuine, they act in good faith and follow a fair process. This involves applying principles of being open, communicating actively and responding to your questions, and providing information that is relevant to your ongoing employment.

Your employer can’t impose a new structure, but can consult with you about proposed changes to the business, provide information that is relevant to a proposal, and request that you provide feedback on the proposed changes. It must then genuinely consider that feedback, before making and implementing any decisions. You are entitled to request that your employer provides you reasonable time to seek legal advice on the proposed changes, before providing your feedback. 

Can I be made to take my annual leave?

If your employer is considering having you take annual leave during the lockdown, they will need to consult with you about when you were planning on taking annual leave and try to come to an agreement with you as to when you take that leave. If you are not able to come to an agreement, your employer may give you 14 days’ notice of the need to take your annual leave entitlement. It is important to note that your employer can only do so where you have worked for your employer for a year or more. If you have worked less than a year you will only have accrued annual leave and will not have become entitled to take your annual leave yet. 

What rights do I have as a casual worker?

If you have been offered hours that you are unable to work due to the lockdown you are considered an employee for that period you are supposed to work and should be paid for those hours.

If you have not been offered any work during the lockdown, you will not be considered an employee and may need to apply for financial assistance.

If you are a casual worker for an essential service and have been offered work and have accepted that work, you will be expected to work in accordance with your employment agreement. 

What if my job is an essential service but I can’t work, does my employer have to pay me?

If you fall into any of the following categories, your employer should be applying for the essential workers’ leave support scheme on your behalf:

  1. You are self-isolating because you have contracted the virus or had contact with some who has contracted the virus (or have a dependant who is sick or self-isolating);
  2. You are deemed at higher risk if you contract the virus;
  3. You have someone in your household/bubble who is deemed at higher risk is they contract the virus.

Where you do not fall into any of the above categories, your employer may not qualify to apply for the essential workers’ leave support scheme on your behalf.

In that case, you will need to discuss with your employer your reasons for not wanting to work during this period, and whether any concerns you have about working could be fairly resolved. If this is not possible, and you have a balance of annual holiday entitlement, you may want to request that you take annual leave to receive some income during the lockdown period. 

If you are not able to work because you are sick, or have a dependent that is sick, you may be entitled to sick leave.

If you think your employer may not be meeting their obligations and would like some advice on your specific situation, our specialist employment law team at DTI Lawyers can be contacted on 07 282 0174.

The information contained in this article as of the publication, but please note in this rapidly moving environment, you should review the DTI Lawyers website, or contact our team, to ensure it remains up to date.