Another outbreak in either country could 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.

An employers’ options in this situation will depend on individual circumstances. However, there are precautionary measures that an employer can take now to avoid potential problems down the line.

Our advice is twofold. First, we recommend that employers prepare a robust policy for all staff setting out that any international travel will be at their own risk, and requiring employees to advise when they are heading overseas as part of any application for leave. The policy should also clearly set out that any costs associated with an extended stay overseas will be the employee’s responsibility.

Secondly, we recommend that employers tailor a plan with each employee intending to travel overseas to avoid any surprises. Each plan should cover the following:

  • The expected date of the employee’s departure.
  • The expected date of the employee’s return.
  • Remuneration arrangements.
  • The process that will be followed should an employee be stuck overseas. It may state, for example, that if the employee is unable to work, they will be expected to take unpaid leave. Alternatively, if the employee is able to perform their role remotely, then any plan should state what those arrangements would look like.

In a worst-case scenario, an employer may be forced to consider whether it can keep an employee’s role open for them. Some analogies can be drawn between assessing whether an employee’s role can be kept open while away from work for extended periods due to medical reasons. It is well settled that an employer is not expected to hold a job open indefinitely for an employee who is unable to perform their role due to sickness or injury, and arguably the same may apply here. Therefore, there may come a point at which employment could be terminated in circumstances where an employee is stuck overseas and unable to work, but a full and fair consultation process must first be carried out, and any outcomes decided on should be fair and reasonable in all the circumstances. For example, if an employee is stuck in Australia and unable to get on a flight home for three days, it would be unreasonable to terminate in that circumstance. It will only be reasonable where the delay is significant and ongoing.

Notwithstanding the above, if the employee is travelling for work (and not leisure) the situation would be different, and any risks associated with that travel would likely fall on the employer.

Like most things when it comes to COVID-19, this is an unprecedented area of law and it requires the balancing of government-led directions against employment obligations. Employers may be frustrated by employees choosing to travel during this unpredictable time, but employment law principles remain the same and we strongly suggest seeking legal advice before any action is taken.

Please contact Sophie or Kendal in the Cavell Leitch Employment Team for further advice on workplace policies or any questions.