Carrying on business under the COVID-19 Protection Framework

Wednesday, December 8, 2021

On Friday 3 December the new COVID-19 Protection Framework, or “traffic light system”, was implemented. The new system brings about a new set of regulations for businesses to get their heads around. We provide some key points about the COVID-19 Protection Framework below.

Different requirements for different activities

Requirements under the traffic light system are supposed to be applied to different activities, rather than different businesses or services. This means a business may need to apply different rules to different aspects of its business (for example, if a business provides a retail service as well as a food and drink service).

Different requirements that may be applied to the different activities include:

  • Requiring all workers be vaccinated.
  • Requiring all patrons show a COVID-19 Vaccine Certificate (CVC) before entering the premises.
  • Prohibitions on denying entry to premises based on a person’s vaccination status.
  • Use of face coverings by workers and/or patrons.
  • Limits on the amount of people allowed in a specified space at any given time.

There are choices provided under some of these requirements. For example, some businesses and services can choose to apply CVC rules or non-CVC rules.

The COVID-19 Order that implements the Protection Framework includes additional requirements that are not yet in force but may be invoked at a later date. These include provisions for enforcing localised lockdowns and travel boundaries. The Government’s intention in incorporating these dormant provisions is, in part, to signal further restrictions that could be imposed.

Forget the term “essential services”

Under the higher levels of the previous alert level system, the term “essential services” was crucial. This term has been turned into two – quite different – concepts under the traffic light system.

First, some businesses and services are prohibited from restricting access to their workplace based on a person’s vaccination status at any level of the Protection Framework. These businesses and services include:

  • Supermarkets
  • Dairies
  • Pharmacies
  • Petrol stations
  • Public transport services (except domestic air transport services and Cook Strait ferries)
  • School transport services
  • Particular kinds of government funded; ­­­­­­­
    • health services
    • housing
    • housing support services; and
    • emergency accommodation; and
  • Premises used to provide shelter or emergency or temporary housing for people in a civil defence emergency.

In the lead up to introducing the traffic light system, these businesses and services were described by the government as “essential” because of their importance to the basic needs of people. The government’s thinking is that everyone must be able to access them regardless of vaccination status. However, they are actually a cut-down version of the previous “essential services” list and are instead described as “designated premises” in the new COVID-19 Order.

Second, the fuller “essential services” list from the alert level system has been reshaped into a list of “category 1” and “category 2” businesses and services under the new COVID-19 Order. The provisions relating to category 1 and category 2 businesses and services, however, are not currently in force. If localised lockdowns are imposed at a later date, then it is likely that the category 1 and/or 2 businesses and services lists will also be invoked, and only category 1 and category 2 businesses and services will be permitted to open their premises, with particular requirements applied to them.

What are the “activity” categories?

Business related “activities” have been categorised into:

  • Accommodation services
  • Close contact services
  • Entertainment, recreation and exercise
  • Events
  • Food and drink services
  • Manufacturing, supply or processing of goods and packaging
  • Primary industries
  • Public facilities
  • Retail
  • Services; and
  • Transport, freight and logistics.

The extensive list of requirements for each activity mean it is important that businesses and services categorise their activities appropriately. Unfortunately, the distinction between activities will be difficult for some businesses.

For example, premises that provides health services that are “partially or wholly government-funded” cannot deny people access to their services based on vaccination status. What is “partially” funded is unclear from the legislation and guidance – does this mean a health service which receives some ACC coverage cannot use CVC’s in the workplace at all? Do the requirements apply to the activity that is funded, or the business or service, or the premises in which the activity occurs?

Another area that is unclear is whether businesses and services can apply the CVC rules and the non-CVC rules to different areas of the same premises. It is clear the rules can be applied at different times, but it is not clear if they can be applied concurrently to different areas of a single premises, even where those areas can be clearly separated.

What are “capacity limits”?

“Capacity limits” is a key term under the Protection Framework. The capacity limit for a place or activity is based off either a specified number of people, or if no number is specified, the maximum number of people who could occupy the space if each person were to remain at least 1 metre apart. When assessing the capacity limit for a space, remember that: 

  • Capacity limits include all attendees, but not workers.
  • Capacity limits based off the 1 metre distancing rule do not mean people must be kept 1 metre apart – the rule is used as a measurement of the maximum number of people who can occupy a space if each person were kept 1 metre apart.
  • Gatherings in private dwellings are exempt from capacity limit restrictions. Instead, there is a limit of 50 people per gathering of unvaccinated people, and no limit for gatherings of vaccinated people.

Businesses will need to be familiar with the regulations pertaining to their activities, to ensure they are carrying out business in accordance with the capacity limits relevant to them.

Assistance

If you are looking for further guidance on whether or not your workers need to be vaccinated, read our article here. If you need further assistance to navigate the legal implications of the COVID-19 Protection Framework, don’t hesitate to reach out to our employment law team and public law team for assistance.

 

Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.

 

Share this publication