Employers of people working through the Covid-19 lockdown may face prosecution if any of their staff get infected or die of the virus.

However, under Health and Safety legislation, David Traylor, lawyer with Dundas Street Employment Lawyers, says an employee doesn't even have to contract the virus for an employer to be charged - the workplace may in fact just be exposing staff to dangers.

As it stands, employers have an obligation under Health and Safety legislation, whereby they need to ensure their staff's safety as far as reasonably practicable.

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While a lot of Kiwis have either lost their job or been forced to use up leave and apply for Government assistance, many - providing what is classed as an essential service - are working through.

Essential service employees include those in the medical, emergency, food, healthcare, energy, full, waste-removal, internet and financial support industries.

A Raglan woman contacted the Herald concerned at the conditions and lengths her whānau were going to, to keep themselves safe.

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"Who would have thought our less qualified kids are now critical labour force? They need to be paid danger money. They need extra sick leave for mental wellbeing. They need shortened weeks."

She said they were all thankful to have jobs, but was dubious about the lengths their employers were going to, to help them keep safe.

Traylor said there were basically three levels on which an employer could be charged. The first was failing in their primary duty of care to keep staff safe, without anyone contracting the virus or being hospitalised.

The next was breaching the act by exposing a worker to the risk of serious injury or death, and lastly, acting recklessly, without reasonable excuse, exposing a worker to the risk of serious injury, illness or death.


On the flip side, an employer would have a defence or escape proceedings if they had gone to great lengths to try and protect them from the virus.

He used a supermarket worker as an example.

It was someone likely not highly paid, but due to working for an essential service, they were expected to go to work.

As for that employer's obligations, given their staff member is on the frontline during a pandemic response, they couldn't "just do nothing".

"It can't just say, no, we're throwing our hands up. This is a virus that we have no control over and there's nothing we can do about it because they do have an obligation pursuant to the Health & Safety at Work Act, to ensure the safety of its staff while they're at work so far as its reasonably practical to do that."

The employer is obliged to take reasonably practicable steps to keep their staff safe.


So, for a supermarket worker, their employers should be thinking about physical distancing, protection for staff - including masks and gloves or sanitiser, adjusting the number of customers which could enter the store.

Traylor accepted both Countdown and Foodstuffs - which owns Pak n Save, New World, Four Square had implemented those measures as well as installed perspex screens at checkouts.

"They do need to be taking all of those steps to ensure so far as reasonably practicable that their staff who are having to come into work, because it is an essential service and because the shop needs to keep running, are safe and don't catch the virus."

As for whether an employer could be prosecuted if an employee catches the virus and suffers consequences as a result?

"The short answer is yes.

"And whether they are found wanting and are prosecuted will be depend on whether they've done those things I've just mentioned; taken reasonably practicable steps they could.


"If a step is identified that they could have taken that they didn't take, well that's potentially going to expose them to some liability."

As for how to keep employees safe during the lockdown, he sighted the recent case of Sistema workers who walked off the job after claiming they were being made to stand less than a metre apart on the production line; despite the Government's advice of 2 metres.

Although not aware of all circumstances, Traylor said it appeared staff had every right to walk off the job in fear of their own health and safety wellbeing.

As for what employees could do if they felt unsafe, Traylor said going on strike was an option, however if they weren't in a union they would just have to prove they were at "imminent risk".

The risk associated with their usual job would also have to "measurably" increase.

Pak N Save staff are now wearing masks, gloves and protected by perspex screens due to the coronavirus outbreak. Photo / Alex Burton
Pak N Save staff are now wearing masks, gloves and protected by perspex screens due to the coronavirus outbreak. Photo / Alex Burton

As for whether an employer was obliged to offer any extra benefits to those being exposed, Traylor said there wouldn't be any financial obligations however the employer could negotiate different working arrangements.


He said those employees would be working in an environment that was now more stressful and busier than usual. Again, a supermarket worker would be more stressed and busier, as opposed to someone in emergency services who are likely always in highly stressful situations.

One way to keep safe would be to stagger shifts but keep them in the same clusters to reduce the risk of cross-infection.

As for employers who are yet to provide or do anything for essential service employees, he said they should be.

And just because some staff were now working from home, didn't mean there was any less responsibility to keep them safe.

"The Health & Safety obligations don't stop once employees are working from home.

"You still need to make sure that your employees are safe in their workplaces and quite often employees are working from home in slightly unusual circumstances; the chair that they've got is not very ergonomic, the desk might not even be a desk."


Some might feel that they had to "work all hours of the day because they're not getting away from work".

"Employers can't just sit back and go 'oh yeah, out of sight, out of mind, we don't have to worry about that'."

"They need to be continually keeping in touch with their staff, making sure that they have what they need to be able to do their job and to do it in a way that doesn't expose them to risk of harm."

The Herald has also sought comment from Worksafe and Ministry of Business, Innovation and Employment.

Covid19.govt.nz: The Government's official Covid-19 advisory website