Covid-19 changes and flexibility in the workplace

29 Mar 2022
Author: Mikayla Spanbroek

How employees can propose a new ‘normal’ and employment obligations to consider 

In the latest Covid-19 update it was announced that the use of QR codes or other record keeping practices are no longer required. From the 4th of April vaccination passes and mandates will no longer be required except for workers in the health and disability sector, prison staff, and Border / MIQ workers as risks have been identified in these areas.  

This means that aspects of work that were only able to be performed by a vaccinated employee may now be open to those who are unvaccinated. However, for employers this does not mean that vaccination policies, risk assessments and mitigation practices are redundant. Nor does it mean that unvaccinated employees who were terminated based on non-compliance with vaccination mandates under the prior framework are free to return or have grounds to challenge their termination based on this change alone.  

Business’ may choose to voluntarily enforce workforce vaccination where a health and safety or business risk assessment supports it and may continue to require vaccination as a condition of employment. However, as the risk of Covid-19 dissipates, employers will need to ensure they have undertaken a risk assessment and have good reasons to do so. Therefore, it is particularly important for employers to ensure Covid-19 and vaccination policies are up to date and are flexible enough to anticipate future changes in the risk of Covid-19 and government guidance to ensure adaptability and minimised disruption to the workplace.  

UPDATE AS OF 30 MARCH 2022 - also refer to the Government's subsequent announcement regarding guidance on workplace vaccination.

Where there are any proposed changes to policy the most important thing for employers to remember is consultation with employees. 

Flexible working Arrangements: 

As restrictions are eased and we return to ‘normal’ it might be time to assess what normal is and whether there is a new normal for the workplace. Many workplaces have adapted to work-from-home arrangements, and some have preferred it – while others have not. For employers it is a good time to start considering whether the implementation of flexible working arrangements is a better ‘normal’ for your workplace. Under the Employment Relations Act 2000, employees have a statutory right to request a variation of their working arrangements. This variation may include flexibility in the location of work such as remote working or flexibility in the hours of work.  

Employees – Making a request 

It is your right to make a request we recommend that you clearly outline to the employer, the changes you are requesting, in writing; why, when you would like these changes to take effect, whether these changes are temporary or permanent and what steps the employer may need to take to implement these changes.  

Employers – Considering a request  

An Employer has an obligation to consider this any flexible working request, consider reasonable alternatives and respond within one month. In doing so an employer should first acknowledge receipt of the request, noting the date it was received. If there is not enough information in the request, advise the employee that more information is required before the request may be considered. Once a completed request has been sent it should be considered by all relevant parties. If possible, a face-to-face meeting with the employee is the best practice to allow discussion of options and issues. If there is a flexible working arrangement policy in place, this should be referred to and discussed, as should any relevant provisions of the Employment Agreement such as the provisions relating to locations of work. When responding to a request it is important for an employer to show that there has been full consideration of the request and the reasoning for the decision should be outlined and clarified with the employee.  

If there is no flexible working policy in place and employer may consider whether implementing such a policy may be appropriate for the workplace. In NZ there has been an increased demand for flexible working arrangements as work-life balance become a priority and some working from home has been required over the past two years. For employers this means flexible work arrangements can be attractive for new recruits. However, before implementing such an arrangement it is important for employers to consider the following: 

  • The impact on management, support, collaboration, and workplace culture;
  • Management of work-related expenses and equipment at home;
  • Any health and safety issues, including not only physical but mental and wellbeing issues; 
  • Any impact on equality within the workplace; and
  • Policies and locations of work / hours of work provisions in employment agreements. 

It is important for employers to remember that where there is a ‘location of work’ provision in the employment agreement, this may need to be varied for current employees with their mutual agreement or adapted to include flexible working arrangements for future employees. If an Employer is considering implementing a policy, it is paramount to follow a fair process and consult with employees before making such a decision.  

If you have any questions, please do not hesitate to give our specialist employment team a call on 07 282 0174. 

Covid-19 changes and flexibility in the workplace
About the Author
Mikayla Spanbroek
Mikayla Spanbroek is a Solicitor, graduating in Law (first class Honours) and Accounting at the University of Waikato in 2023. Mikayla works in the specialist employment law team at DTI Lawyers.