On 27 April 2020 at 11:59pm, New Zealand moved out of Alert Level 4 lockdown to Alert Level 3. New Zealand will be at Alert Level 3 for at least two weeks. The Government continues to use orders pursuant to the Health Act 1956 to direct and enforce expected behaviour.1
It is clear that in shifting from Alert Level 4 to Alert Level 3, the Government is moving away from the permissions for 'essential businesses' to 'safe businesses' – or those that are able to meet the infection control requirements and health objectives. The Government is, however, alive to the fact that New Zealand may be required to return to Alert Level 4 in the future. If this was to occur, it can be expected that business restrictions will continue to focus on (more restrictive) safe operations, rather than a return to the complex essential businesses regime.2
On 24 April, the Government issued the Health Act (COVID-19 Alert Level 3) Order 2020 (Order), which sets out the requirements for Alert Level 3. It includes isolation and quarantine restrictions, permissions for essential personal movement or recreation, a prohibition on congregating outdoors, and the requirement for premises to remain closed unless the required "infection control measures" are in place.3 The Order is available here.
Businesses are separated into three categories with varying degrees of appropriate "infection control measures" applying to each:
- Category A businesses and services specifically include health services, schools, border services and the Police. In most instances, these businesses must implement 'physical distancing' measures.
- Category B businesses are supermarkets, dairies, petrol stations, pharmacies, and accommodation services. These businesses must implement 'physical distancing' and (with the exception of accommodation services) must not allow food or drink to be consumed on the premises.
- Almost all other businesses will fall into Category C, and are required to implement 'physical distancing', contact tracing, and ensure that no customers or clients enter the premises unless it is to collect goods via a method that minimises physical interaction and does not involve entering a building.
Physical distancing is specifically defined in the Order, but the general principle is that, wherever possible, a two-metre distance between people is preferable. However, for workplaces a one-metre separation is permitted, and closer contact must be for less than 15 minutes.
Services that involve close physical contact (e.g. hairdressers) cannot comply with the relevant infection control measures, and therefore will be unable to open. However, this does not preclude a business from entering onto its premises to undertake any necessary work. This includes, for example:
- basic operations required to maintain the condition or value of the premises, equipment, or goods;
- receiving stock or freight; and
- tasks to enable workers to be able to work remotely from home – provided these operations can be done safely.
It is worth noting that certain measures the Government has outlined at Alert Level 3 are not mandated by the Order, but rather are 'expected' from the Government. The differences are specifically outlined in a recently released Cabinet Paper, setting out the powers and authorisations to give effect to Alert Level 3 (available here). For example, although under the Order people are permitted to travel to their workplaces if they have relevant infection control measures in place, the Government is still encouraging people to work from home unless that is not possible. The Government expects businesses to take such steps voluntarily to protect the community.
Further, the Order is supplemented by existing obligations under the Health and Safety at Work Act 2015. That is, while the Order's objective is to establish movement and contact restrictions to manage COVID-19 risk from a public health perspective, all employers will need to consider what additional specific risk mitigation measures should be put in place from a safe workplace perspective (on which WorkSafe is continuing to provide guidance and advice). Although this dual regulatory approach was applied under Alert Level 4, the Cabinet Paper acknowledged that with increased business activity at Alert Level 3, there will be increasing and more complex interaction between the regulatory requirements.
The Government is currently undertaking further work to consider the measures that could be implemented at Alert Level 2. The Cabinet Paper indicated that a shift to Alert Level 2 will see an even more complex compliance environment. This is because the Government will place a greater reliance on widespread voluntary compliance (compared to Alert Level 3 and Alert Level 4), and non-compliance could have a disproportionately large public health impact given the increase in interactions.
This article is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice. If you require any advice or further information on the subject matter of this newsletter, please contact the partner/solicitor in the firm who normally advises you, or alternatively contact one of the partners listed below.