COVID-19: Level 4 Essential Services (March 2020)

Please note this article and subsequent list of essential services has been superseded by the new order, released 17 August 2021. Click here to find out more.

With the country now under Level 4 of the COVID-19 pandemic levels at 11.59pm on Wednesday 25 March, the question of what is now an essential service (and relatedly, an essential business) is crucial.

All non-essential businesses must now be closed and all New Zealanders not in essential services must stay home. Closing means that workplaces must be closed with staff either working from home or taking leave.

What is an essential business?

Following the issue of the Epidemic Notice by the Prime Minister under section 5 of the Epidemic Preparedness Act 2006 last week, the Director-General of Health issued an order under section 70(1)(m) of the Health Act 1956. In addition to forbidding people from congregating in public, that order requires all premises in New Zealand to be closed other than those listed in the Appendix to the order.

That Appendix includes any premises necessary for the performance or delivery of essential businesses. Essential businesses are defined as:

Businesses that are essential to the provision of the necessities of life and those businesses that support them, as described on the Essential Services list on the COVID.govt.nz internet site maintained by the New Zealand government.

The list can be found on the Government’s COVID website at https://COVID19.govt.nz/government-actions/COVID-19-alert-level/essential-businesses/. It outlines what the Government currently sees as the essential businesses which are to continue to provide necessities for New Zealanders, maintain public health and safety and maintain key infrastructure. It has been regularly revised as the Government considers what businesses are essential during the Alert Level 4 lockdown and will continue to evolve.

The Ministry of Business, Innovation and Employment (MBIE) have clarified that the starting point is that the lockdown is necessary to prevent the spread of COVID-19, and the essential business exceptions need to be applied in that light. MBIE also said that no-one should expect operations as normal – the focus is on businesses providing the necessities of life for people during Alert Level 4.

MBIE encourages businesses who need advice to contact essential@mbie.govt.nz or 0508 377 388.  For queries relating to Primary Industries, including food and beverage production and processing, primary sector businesses are encouraged to contact MPI at 0800 00 83 33 or info@mpi.govt.nz for further details on the registration process.

What is considered an essential service may change over time – some activities which are not essential now may become essential if New Zealand remains at Level 4 for a sustained period of time. Owners of businesses not currently listed as essential should continue to monitor the list and stay in contact with the Government as there may be opportunities to reopen. If those discussions do occur, and businesses do find they are able to operate again, we would recommend waiting until the list is formally amended on the website before reopening.

The list of essential businesses was last updated by Government at 6pm on 28 March 2020 and currently includes the following:

Any critical suppliers to any of the above can also remain open.

The Government advice also confirms that for the avoidance of doubt the following specified sectors are included in the list of essential services:

• The specific entities set out in Schedule 1 (Lifeline utilities) of the Civil Defence and Emergency Management Act 2002 (these include for example Radio New Zealand, TVNZ, and companies or entities running specified airports and ports)
• The services set out in the Employment Relations Act 2000 Schedule 1 of essential services (these primarily concern transport, sewage, and power services)

If your business does come within the above, we expect that you will only be able to carry out the aspect of your business necessary for the delivery or performance of the essential service. If you are unsure about what this means for your business, you may wish to seek clarity from the relevant lead agency covering your service.

In addition, the Government has made a number of additional decisions, clarifications and exemptions which as of 2pm on 29 March 2020 were made up of the following:

• All supermarkets and dairies are considered essential services. A supermarket’s primary focus is selling food product, and is a retail store operating on a self-service basis, selling groceries, fresh produce, meat, bakery and dairy products, and sometimes an assortment of non-food goods. Dairies must operate a one-in-one-out rule, and cannot sell cooked food.
• Food delivery other than cooked prepared meals such as takeaways is allowed (eg supermarket home delivery, food parcels from charitable organisations, subscription food boxes, or any other whole-food delivery service). Meals-on-Wheels and alternative meals on wheels services that have been referred from a DHB, ACC or MSD may continue to deliver prepared food. Ordering, payment and delivery must be contactless and the business must operate safely within the general health guidelines such as physical separation and hygiene.
• Food banks are considered an essential social service. Food banks must operate a one-in-one-out rule, and cannot sell or provide cooked food.
• Multi-product retailers that supply food and beverage as an ancillary service are not an essential service (eg The Warehouse).
• Locksmiths can undertake essential work on emergency call-outs and essential activity to maintain the security of premises/personal properties.
• Turf maintenance is not considered an essential service and should not be undertaken at this time.
• Pet care services are not considered to be essential, except where necessary to maintain existing boarding of animals in pet care, or for long-term care when no other alternatives are available.
• Vehicle washing services must only be undertaken when supporting essential services to ensure they are complying with the necessary health and safety requirements eg washing off contaminated or biohazard materials.
• Road safety equipment for road construction should only be used only where maintenance is essential.
• Farmers markets are not considered to be an essential service, as alternatives are available.
• Liquor stores must close to the public unless they are in Licensing Trust Areas and the liquor store is operated by the Licensing Trust in that area. Open premises in Licensing Trust Areas can operate with a one-in-one-out rule.
• Pest management may be undertaken only where required for human health and safety, and it is essential during the Alert Level 4 period. However, operators must ensure people have somewhere safe to go while the process is underway, in particular where a property is being vacated.
• Campgrounds may continue to operate under very strict protocols and management of access. Eg contact to be maintained only with people staying in the same abode/room; common social and recreation areas to be closed; split shift access to common areas.
• Backpacker accommodation providers may continue to operate under very strict protocols and management of access conditions. Eg contact to be maintained only with people staying in the same room; common social and recreation areas to be closed; split shift access to common areas.
• Butchers, bakeries and similar small-scale food retailers are considered non-essential, as similar products are readily available in supermarkets.
• Furniture moving, in general, is not considered to be essential. However, as the deadline for domestic travel has been extended until midnight Friday 27 March, anyone in the process of moving house will need to complete their move before the end of Friday. Similarly, all furniture deliveries currently in transit would need to be also be delivered by the end of Friday.
• Natural health services are considered non-essential.
• Security is considered an essential service, even if security services are being provided in relation to a premise for a non-essential service.
• Self-storage facilities can operate only to facilitate access for essentials. New sales or expiries of units are considered non-essential. Access to existing lockers is permitted for essential items or services only, eg fridges.
• Critical support services to ensure businesses and workers can continue working from home are considered to be essential. This includes functions such as IT and Payroll.
• Rental cars may be accessed in some circumstances. Ministry of Transport has put out documentation on essential transport logistics and services. Please refer to the Ministry of Transport website for further details.
• Every restaurant, café and bar must close all aspects of their operation.
• Self-service laundries can stay open, with 2-metre physical distancing to be enforced.
• Bunnings, Placemakers, Mitre 10 and other retailers essential to the supply chain for building and construction can stay open to trade customers for essential purposes only.
• The Tiwai Point smelter is exempt from closure.
• NZ Steel is to shut down in a way that allows for production to recommence easily.
• Pulp and paper plants are to shut down their non-essential elements in a way that allows for production to recommence easily, and while maintaining essential production.
• Methanex can remain in production, but at a scale consistent with the stability of gas supply

Mode of operating in essential services

Businesses in essential services are able to continue working at their workplace or in public facing contact but must do so in a way that limits or eliminates the risk of spreading COVID-19. They are in particular required to:

• Minimise or eliminate, if possible, physical interactions amongst staff and with and between customers
• Ensure appropriate health, hygiene and safety measures are in place
• Limit activity to only what is essential during the Level 4 period.

The Government has indicated it is for an industry or business to decide how to best do this but they expect these to include practices such as:

• Working from home as far as possible
• Limiting, or eliminating if possible, physical interaction between staff (e.g. physical distancing split shifts, staggered meal breaks and flexible working arrangements)
• Limiting or eliminating if possible, physical interaction with and between customers (e.g. through online or phone orders, contactless delivery or managed entry – whilst also avoiding crowding outside) and physical distancing both inside and outside the premises
• Hygiene basics of hand-washing and sanitisers
• Frequent cleaning of premises, especially counters and eftpos terminals, and other high-touch surfaces (cleaning advice is available on the Ministry of Health website at: https://www.health.govt.nz/our-work/diseases-and-conditions/COVID-19-novel-coronavirus/COVID-19-novel-coronavirus-information-specific-audiences/general-cleaning-information-COVID-19)
• Protective equipment for staff as appropriate.

Essential businesses unsure of whether they are able to operate in a manner that minimises the risk of transmitting COVID-19 are asked to close while they put in place appropriate measures.

Businesses unsure about whether they are an essential business can contact essential@mbie.govt.nz or call 0508 377 388 for guidance but in the meantime, must close in the interests of New Zealand public health.

Duncan Cotterill is also available to assist – please contact your normal Duncan Cotterill partner or a member of the firm’s public law team. If you have questions about the consequences for you as an employer or an employee, please contact our employment law team.

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. While we make every effort to ensure the accuracy of the information contained in this article, this is a rapidly changing environment and the information will be subject to change.