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Following the Prime Minister’s announcement that we would be opening our borders to trans-Tasman travel, there has been a flurry of activity of people looking at flights to make the journey to see loved ones, and of businesses looking to resume face to face activity with colleagues and clients overseas.

This all looks pretty rosy from the outside – back to business as usual, right? However, from a business perspective, it is not quite as clear cut.  It looks like a return to some of the issuers that have plagued businesses since the pandemic appeared on the horizon.

Here are some of the imponderables which cannot really be answered in the hypothetical.

The answer lies in the overarching legal requirement of all employers to fair and reasonable in the circumstances and complies with the holiday’s act. Each situation will need to be assessed on its own merits.

Can I send my employees to Australia on business? 

Technically, yes if it is a reasonable requirement of the job and being there is the only feasible way to do the job.

However, this is at your risk and at your expense if it all goes wrong and your employee gets ‘stuck’ in the event of an outbreak.

However, it would be reasonable for an employee to decline a request to travel by the employer on the balance of risk and for genuinely held health and safety concerns.  It can be argued that whilst an employer can ask an employee to travel abroad for work, it would be a stretch to mandate it (particularly if there are other reasonable viable alternatives such as Zoom, Teams, etc).

My employee wants to take leave to go on holiday.  Do I have to grant their annual leave?

This may be more complicated. The right to annual leave is dictated by the Holidays Act.  Initially, the right if the timing cannot be agreed to, is by agreement and if no agreement then it cannot unreasonably be withheld. So again, this will depend on the circumstances.

Does my employee have to disclose that they are travelling abroad?

In the world BC (Before COVID), we would say no. However now it may be a matter of good faith for the employee to advise that they are travelling internationally and that there is a risk to their return.

A lot of people in my organisation want to take leave to travel to Australia, how do I manage this?

If there is a rush on leave applications then again as with ordinary leave requests, the granting of leave can be balanced upon the reasonable requirements of the business.

Should I update my Annual Leave policy?

YES. Given the extraordinary circumstances we have experienced in this past year, it would be prudent for policies to reflect the need for employees to state if they are travelling abroad and where the risk and requirement of return lies.  Employers may want to stipulate the provisions for further leave and impact on employment if leave becomes extended.

If my employee gets ‘stuck’ due to alert levels changing, can I enforce a Force Majeure?

Good question!  Quite possibly – this is dependent on the individual contract. But we suggest force majeure may not apply given that inability to return is a foreseeable risk created not by an Act of
God but a breakdown in the management of COVID systems.

Can other employees refuse to work with returnees if there has been a concern raised as to the travel destination?

All health and safety fears need to be taken seriously and assessed.

In summary, employers need to make it clear before the leave is approved, what the rules of taking the leave to travel abroad involve and the associated risks.

Contact us if you need advice on how this guidance impacts your business.