Employment Law Issues with Travel ‘Bubbles’

May 2021

The recent opening of the Trans-Tasman travel bubble allows Australians and New Zealand residents to travel freely between the two countries without needing to quarantine. Work is also underway on the establishment of a Cook Islands bubble.

However, further outbreaks may cause flights to be either paused or suspended and borders may close at any time.  In addition, further outbreaks may mean travelers are stuck in the country they are visiting beyond their planned returning date and/or are required to enter managed isolation or self-isolate when they get home.

This raises questions as to employers’ options if an employee who takes a personal trip overseas cannot return to work after their approved leave dates. The delay could be significant if the employee struggles to secure a return flight or a place in a managed isolation facility.

Can an employer inquire about an employee’s personal travel plans?
An employer must not unreasonably encroach on the personal life of an employee. In general terms, this means an employer cannot dictate where employees spend their holidays. However, it is reasonable to ask employees to tell you if they are travelling overseas, especially as this could mean they are at a greater risk of not being able to return to work after their approved leave dates.  The duty of good faith requires employees to be responsive and communicative. However, employees do not have a positive obligation to advise you of their travel plans should you not request this.

Employers should also ensure that any personal information collected is kept confidential in line with the Privacy Act 2020.

Can an employer prohibit or restrict an employee’s personal travel overseas?
The Holidays Act 2003 provides that annual holidays are to be taken at times agreed between the employer and the employee. An employer cannot unreasonably withhold consent to any request to take annual leave. However, a request for annual holidays can be declined for genuine business reasons. The duty of good faith applies, meaning the employer must give proper consideration to the request and explain the reasons for declining it.

Whether the risks associated with the travel bubble would be considered a valid business reason enough to warrant declining a leave request will depend on the circumstances. Factors to consider include the reason for the travel, whether the workplace is a high-risk for COVID 19 (e.g. a rest home) and whether there are alternative working options should the employee not be able to return in time. For example, can the employee work remotely if stuck overseas or in managed isolation?

However, given that travel within overseas bubbles is legal, a general concern that the employee might not get back to work on time is unlikely to be sufficient on its own to decline a request.

Can an employee be dismissed if they are unexpectedly stranded overseas?
The justification for any disciplinary action is always determined under the test set out in s 103A Employment Relations Act 2000. Is the action what a fair and reasonable employer could do in all the circumstances?

Therefore, whether an employer is justified in dismissing an employee will depend on a number of factors specific to your workplace, such as:

  • What is the expected length of the delay? Dismissal is unlikely to be justified if the delay is not lengthy, for example where the employee has to enter managed isolation for 14 days.
  • Can the employee’s role be done remotely?
  • Is it possible to reorganise work among existing staff?
  • If it is not possible for an employee to work remotely, arrangements such as taking additional annual holidays or special leave should be discussed.
  • The employee’s length of service, role and seniority.
  • The impact on the business.

Also, before an employer could validly dismiss an employee, they would need to follow a fair process, where the employee has a right to respond to the employer’s concerns before a final decision is made.

There is a risk that if the decision is considered unreasonable or the employee was not subject to fair process, they could raise a personal grievance for unjustified dismissal.

Can an employer require an employee to self-quarantine or isolate after personal travel overseas?
Whether an employer would require agreement from their employee to work from home, will depend on the wording of their respective employment agreement. If the employee’s place of work is fixed to a specific location, you would need to consult with the employee to see if they agree to work from home. If their place of work in their employment agreement is flexible, then it is arguable that you could direct the employee to work from home. In any event, if it is the employer requesting the employee to stay home, the employee would be entitled to be paid their usual remuneration.

However, should the employee be directed by the Ministry of Health to stay home because of their travel overseas, and they were unable to work from home, then an employer would not be required to pay them as they are not “ready, willing and able” to attend work. In this situation you should engage with the employee regarding leave arrangements such as using annual holidays or unpaid leave.

Can an employer require employees to provide a negative COVID-19 test before returning to work after personal travel?
Again, whether this would be a reasonable request will depend on the circumstances of each workplace and the employee’s work. For example, for workplaces like rest homes this may be a reasonable request based on the health and safety concerns of the residents and other employees. However, it would be unlikely to be considered justified where the employee’s job is working solo on an isolated sheep farm.

If your business is considering a written travel policy for employees or you have an employee who is prevented from returning home to New Zealand, please feel free to contact us for specific advice.

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