Level 4: What is an essential service?

Wednesday, August 18, 2021

The country entered Alert Level 4 at 11:59 pm on Tuesday 17 August for the first time since the initial Alert Level 4 order of March 2020. Once again, the question of what businesses and services are considered essential has arisen.

The Minister for COVID-19 Response has the power to make a COVID-19 order under section 9 of the COVID-19 Public Health Response Act 2020. The COVID-19 Public Health Response (Alert Level Requirements) Order (No 9) (the Order) was released on 17 August. The Order prescribes a list of essential businesses and services. This varies from the approach taken in March 2020, whereby the definition of essential business in an order made under the Health Act 1956 was supported by a description of essential businesses and services on the Ministry of Business, Innovation and Employment website.

Prescribing the kinds of businesses and services that may operate at Alert Level 4 in the Order should reduce the legal ambiguities that have previously arisen around what an essential service is. Some kinds of business that may be considered essential have not been clearly defined in the Order, such as financial services and livestock support. Guidance on the operation of these businesses may be found online. But, without foundations in a legal instrument, the legality of these businesses operating at Alert Level 4 remains unclear.

It seems the Government is working to alleviate further ambiguities in due course. For example, the business.govt.nz website states that while banks are currently not permitted to open at Alert Level 4, the Director-General is considering an exemption allowing them to do so (subject to conditions). In the meantime, we must rely on the Order and online guidance to assist our understanding of what an essential business or service is.

See below for our summary of the provisions of the Order relating to the operation of business at Alert Level 4.

Essential business and service providers

Workplaces can only open at Alert Level 4 (AL4) if:

  • they are an AL4 business or service listed in schedule 2 of the Order, or they are exempt from the Order; and
  • they are operating safely, in accordance with the AL4 requirements set out in the Order.

The exemptions from the Order are set out in clause 23 of the Order and include border services, health services, various custodial-related services, defence and intelligence services, emergency services and MIQ.

There are thirty (30) business or service kinds listed in schedule 2 of the Order (together, the Businesses) with some businesses specifically defined. Some Businesses may only operate at AL4 under particular conditions. The Businesses and any additional conditions prescribed by the Order are listed below.

Schedule 2 business and services and additional conditions

Business or service

Customers / clients allowed in workplace?

Additional conditions

Supermarkets and dairies

Yes

Must have systems and processes in place to prevent food and drink from being served for consumption on premises

Petrol stations, including any stores operating as part of the petrol station

Yes

Must have systems and processes in place to prevent food and drink from being served for consumption on premises

Licensing trusts

Yes

Must have systems and processes in place to prevent food and drink from being served for consumption on premises

Food banks

Yes

Must have systems and processes in place to prevent food and drink from being served for consumption on premises

Self-service laundries

Yes

Must have systems and processes in place to prevent food and drink from being served for consumption on premises

Hardware and DIY stores

Yes

Most only be for the purpose of selling to trade customer

Uncooked food delivery services and cooked food delivery services where referred by the Ministry of Social Development, a District Health Board or ACC

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Sale of essential non-food consumer products (via online delivery)

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Accommodation services

Yes

Must have systems and processes in place to prevent food and drink from being served for consumption on premises

Building, construction and maintenance services required for 1 or both of the following:

  • address immediate risks to health and safety;
  • nationally important infrastructure

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Any entity with statutory responsibilities for building and resource consenting that is necessary to enable the building, construction and maintenance services referred to (above)

 

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Justice sector, including Courts of New Zealand, and tribunals (but note that this list does not affect the exclusion from the close of premises in clause 18(2)(b))

Yes

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Freight services (including those for transporting livestock) provided by means of road, rail, air or sea; and

any other transport and logistics services, including those provided at or through an aerodrome or a port.

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Passenger services (including public transport) provided by road, rail, air or sea

Yes

 

Primary industries (being food and beverage processing, packaging and production for both domestic consumption or export, plus the relevant support services) and veterinary and animal health and welfare services.

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Scientific services (including research organisations) of the following kind or provided by the following entities or facilities:

  • ESR, GNS, GeoNet, NIWA, MetService
  • Services involved in COVID-19 response, including laboratories and Physical Containment level 3 (PC3) facilities;
  • Services involved in diagnostics for critical businesses or services like biosecurity, food safety, or public health:
  • Other significant research facilities, including animal facilities, clinical trials and infrastructure that requires constant attention.

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Entities requires to provide distance or online learning for primary and secondary education

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

School hostel

Yes

  1. Must keep students and staff, so far as is reasonably practicable, in groups that are appropriate sized and stable.
  1. 1 metre physical distancing rule applies to customer and clients under clause 20

Social and community-based services provided to support persons to maintain critical well-being or as crisis support for people who are unsafe or homeless

Yes

1 metre physical distancing rule applies to customer and clients under clause 20

Key utilities (provide for the production, supply, sale, distribution or disposal of 1 or more of the following):

  • Electricity
  • Gas
  • Water
  • Waste-water
  • Waste
  • Liquid or solid fuel
  • Telecommunication services

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Key communications:

  • News and broadcast media (and includes delivery of newspapers for non-English language material audiences or communities that have limited access to digital connectivity

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Government services, including services provided by State services and local authorities, but only if –

  • This service is a regulatory, defence or social service, or relates to the COVID-19 response or infrastructure; and
  • Provision of the service cannot be reasonably delayed

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Foreign Government (in New Zealand)

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Security services (including locksmiths)

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Pest management services

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Essential elements of pulp and paper plants

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

The following businesses and services:

  • Tiwai Point aluminium smelter
  • Methanex
  • NZ Steel

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Businesses or services necessary to maintain other AL4 businesses or services

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Services for deceased person or tupapuku, including funeral homes, crematoria or cemeteries.

No

Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –

  • scans the QR code for the workplace;
  • provides details in a contact tracing record that the person in control of the workplace collects

Note that the Order does not prevent a person from undertaking any necessary work on a workplace premise to:

  • maintain the condition or value of, or clean, the premises, or any plant, equipment or goods in the premises;
  • care for animals
  • receive stock or freight (including livestock)
  • enable workers to work, or continue to work, remotely from their homes or place of residence; and
  • to prepare the premise for opening.

What is a business?

Section 4 of the Order provides that business and services includes –

  • voluntary and not-for-profit services
  • both public sector and private sector businesses and services
  • businesses and services that provide space for other businesses and services to operate within (for example, shopping malls and marketplaces)
  • business and services that provide facilities or venues for events or activities if people pay to attend an event or participate in an activity or pay to hire a facility or venue; and
  • the playing of sports professionally or semi professionally

A business or service still needs to come under Schedule 2 to be considered an essential business or service.

Operating as an essential business

Businesses must comply with any additional conditions imposed on business or services of that kind in Schedule 2.

As under any alert level, all Businesses must:

  • display a QR code in a prominent area or near the main entrance of the workplace (unless that workplace is a vehicle).
  • keep a contract-tracing record of all persons entering that workplace. Note that;
    • in the case of transport stations, supermarkets or petrol stations (specified workplaces under the Order), a contact-tracing record is only required of all workers of that workplace that enter the workplace; and
    • the application of the Privacy Act 2020 to how the contact tracing records are collected, kept and used by person collecting personal information.

Under AL4, Businesses must also, as far as is reasonably practicable:

  • Maintain compliance with;
    • the 1-metre physical distancing rule for all workers in a workplace of, or while working for, the business or service; and
    • the 2-metre physical distancing rule for any other persons entering a workplace, or using the services, of the business or service;
  • Mitigate any risks that may arise to the extent that physical distance cannot be fully maintained.

Businesses that are not permitted to have customers or clients in the workplace by schedule 2 of the Order must endeavour to ensure customers or clients do not enter the workplace and that there is no close personal contact with or between customers or clients.

Businesses that are able to operate at AL4 are encouraged to put in place other measures, consistent with Health and Safety obligations, to prevent their activities contributing to the spread of COVID-19.

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.

 

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