The country entered alert level 4 at 11:59 pm on Tuesday 17 August for the first time since March 2020. As of Wednesday 8 September, Auckland remains at alert level 4 while the rest of the country has stepped down to alert level 2. Despite three weeks of lockdown, several questions remain as to what businesses and services are considered essential.
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 11) (the Order) was released on 7 September. The Order prescribes a list of alert level 4 businesses and services and the conditions of their operation. This varies from the approach taken in March 2020, whereby the definition of essential business in a Health Act 1956 order was supported by a description of essential businesses and services on the Ministry of Business, Innovation and Employment website.
Prescribing the businesses and services that may operate at alert level 4 in the Order should reduce the legal ambiguities that have previously arisen around what is an essential service. However, gaps in the legislation remain. For example, while businesses and services that sell essential non-food consumer products necessary for people to remain healthy and safe while remaining their household bubbles are permitted to operate under alert level 4, businesses or services that provide maintenance or repair services for essential non-food consumer products are not permitted to operate. There are also questions as to how the border between Auckland and the rest of the country – which is now operating under alert level 2 restrictions – impacts business relationships.
The Government has worked to alleviate ambiguities in due course. Since Tuesday 17 August, three orders have been released relating to alert level requirements, with each being amended several times. The Government has also agreed to amend the current order to allow the manufacturing of some building products in Auckland at alert level 4 (which is currently only permitted at alert level 3 and below), although the industry awaits a formal order or notice to enact the changes.
While each amendment provides further clarity as to the limits of the law, the continual changes also make the limits of the law hard to keep up with.
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 50 of the Order and include border services, health services, various custodial-related services, defence and intelligence services, emergency services and MIQ.
There are thirty (39) business or service kinds listed in schedule 2. Each must operate while following the listed conditions. These businesses and services and any additional conditions prescribed by the Order are listed below.
|
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 |
|
Dairies |
Yes |
Must have systems and processes in place to prevent the following:
|
|
Petrol stations, including any stores operating as part of the petrol station |
Yes |
Must have systems and processes in place to prevent the following:
|
|
Licensing trusts operating in Waitakere and Portage, but only in respect of the sale of alcohol under an off-licence |
Yes |
Must have systems and processes in place to prevent food and drink from being served for consumption on premises. |
|
Health services (other than pharmacies) |
Yes – exempt from Order (clause 50) |
A health service must comply with the contact record rule, but only in relation to people who do not work there (clause 28(3)(c) of the Order). |
|
Exempt from the 1 metre and 2 metre physical distancing rules. |
||
|
Drug and alcohol testing services require for work purposes by –
|
Yes |
|
|
Pharmacies |
Yes |
A health service must comply with the contact record rule, but only in relation to people who do not work there (clause 28(3)(c) of the Order) |
|
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, but only for the purpose of selling to trade customers. |
Yes |
Must have systems and processes in place to prevent food and drink from being served for consumption on premises |
|
Food delivery services for:
|
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Cooked food delivery services, but only if 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 –
|
|
Sale of essential non-food consumer products (via online ordering and contactless delivery) that are necessary for people to remain healthy and safe while isolating, to work or study from home, and to stay in communication with whanau and friends and remain up to date with news and health information, including –
|
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Accommodation services |
Yes |
Must have systems and processes in place to prevent food and drink from being served for consumption on premises unless –
|
|
Building, construction and maintenance services required for 1 or both of the following:
In this item, nationally important infrastructure means infrastructure that enables or supports supply chains that are needed for 1 or both of the following:
|
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Entities with statutory responsibilities for building and resource consenting that is necessary to enable the building, construction and maintenance services referred to (above) |
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Courts and tribunals (but note that this list does not affect the exclusion from the close of premises in clause 25(2)(b)) |
Yes |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
1 metre (rather than 2 metre) physical distancing rules applies to all persons. |
||
|
A court or tribunal must comply with the contact record rule, but only in relation to people who do not work there (clause 37(3)(a) of the Order). |
||
|
Justice sector (other than the justice sector businesses and services specified elsewhere in this schedule. |
Yes |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
1 metre (rather than 2 metre) physical distancing rules applies to all persons. |
||
|
The following services:
|
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Transport stations |
Yes |
1 metre (rather than 2 metre) physical distancing rules applies to all persons. |
|
Passenger services provided by means of road, rail air or sea (excluding public transport services provided by means of air transport or small passenger service vehicles) |
Yes |
1 metre (rather than 2 metre) physical distancing rules applies to all persons. |
|
Public transport services provided by means of air transport or small passenger service vehicles |
Yes |
Clause 29(c): the business or service must have systems and processes in place to maintain physical distancing so far as is reasonably practicable for all persons entering the workplace of, using the services of, or working for the business or service. |
|
Primary industries (which means food and beverages 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 –
|
|
Scientific services (including research organisations) of the following kind or provided by the following entities or facilities:
|
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Entities required 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 –
|
|
School hostels |
Yes |
|
|
||
|
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 |
Clause 28(3)(b): a social or community-based service with a public area, including a customer service counter must comply with the contact record rule, but only in relation to people who do not work there. |
|
1 metre (rather than 2 metre) physical distancing rules applies to all persons. |
||
|
Key utilities (provide for the production, supply, sale, distribution or disposal of 1 or more of the following):
|
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Key communications, which:
|
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Government services, including services provided by State services and local authorities, but only if –
In this item State services has the same meaning as in section 5 of the Public Service Act 2020 and local authority has the same meaning as in section 5(1) of the Local Government Act 2002. |
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Foreign Government (maintaining critical operations of foreign missions based 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 –
|
|
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 –
|
|
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 –
|
|
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 –
|
|
The essential operations of the following businesses and services:
|
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Services for deceased person or tupapuku (including washing, dressing, shrouding or otherwise preparing for burial or cremation).
|
No |
Must have systems and processes in place to ensure that:
|
|
Unions, if reasonably necessary to provide a service that cannot be delayed |
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Businesses or services necessary during the period that the business or service is operating in an alert level 4 area, to maintain any of the following:
|
No |
Must have systems and processes in place to ensure so far as is reasonably practicable that each person enter the workplace –
|
|
Services provided to a person (A) at A’s home or place of residence relating to the delivery, installation or maintenance of goods that are necessary for A’s health or safety |
No |
Services may only be provided if –
|
|
Clause 28A: the business or service must, so far as if reasonably practicable, ensure it has systems and processes in place to keep a contact record in respect of each home or place of residence entered by its workers to provide a business or service for the purpose of enabling contact tracing. If the business or service keeps a contact record for the sole purpose of enabling contact tracing, the business or service must keep the record for a period of 60 days and then destroy the record. |
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.
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.
