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COVID-19 – New Act and Order specify requirements at Alert Level 2

Home Insights COVID-19 – New Act and Order specify requirements at Alert Level 2

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Contributed by: Craig Shrive, Felicity Ellis, Victoria Piatov

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Published on: May 14, 2020


On 13 May 2020 at 11:59pm, New Zealand moved from Alert Level 3 to Alert Level 2. Unlike Alert Levels 3 and 4, the easing of restrictions at Alert Level 2 will occur in stages. From the outset, retail stores, restaurants, cafes, malls, and public spaces (eg, gyms and playgrounds) can reopen. On 18 May, early childhood centres, schools and tertiary organisations will see the majority of children and young people returning, and bars may open from 21 May. All of which are subject to additional controls, which we explain below.
The requirements for Alert Level 2 are set out in the COVID-19 Public Health Response (Alert Level 2) Order 2020 (Order) (available here). The Order is made pursuant to the COVID-19 Public Health Response Act 2020 (Act) (available here). The Act, passed yesterday under urgency, provides a legal framework for the Minister of Health to make Orders to direct behaviour to respond to COVID-19. The Attorney General, Hon David Parker, has said that the Act "will ensure that controls on gatherings of people and physical distancing are still enforceable".
The Order sets out general requirements that all businesses must implement, and additional requirements that apply to specific types of businesses.

General requirements for all businesses include:1  

  • ensuring that (to the greatest extent practicable):
    • people who enter its premises or use its services (eg, customers) remain two metres away from each other and employees; and
    • employees remain one metre away from each other;
  • mitigating the risks that arise to the extent that physical distancing requirements are not fully maintained;
  • permitting a maximum of 10 people who are part of a gathering of friends and whānau (at any one time) to be on its premises and less than one metre apart; and
  • maintaining a contact tracing register of all employees.

The following specific requirements apply to businesses and services to the extent that they largely have a consistent group of workers in a fixed workplace (including offices and factories, businesses with memberships such as gyms, public facilities within a building such as swimming pools and museums, event facilities such as cinemas and stadiums, and courts and tribunals). However, they expressly do not apply to retail businesses - such as malls, takeaways, and supermarkets. The requirements are to ensure:2

  • a one metre physical distance is maintained between people on its premises or using its service (including employees);
  • a contact tracing register is kept of people who enter its premises or use its services; and
  • if they are an event facility (eg, cinemas, concert venues, conference venues), a maximum of 100 customers or clients are on its premises at any one time (not including workers).

There are also specific food and drink requirements for "dine-in" food businesses:3  

  • a maximum of 100 customers are permitted on the premises at any one time;
  • each customer must be seated at a table (not applicable when entering/leaving, paying or using the restroom);
  • a maximum of 10 customers may be seated at the same table together;
  • adjacent tables must be arranged to maintain at least a one metre separation;
  • only one worker may serve each table;
  • contact tracing records of customers who enter its premises or use its services must be kept; and
  • in the case of on-license premises, no alcohol may be supplied on the premises unless the buyer is a dine-in customer.
There will be instances where different businesses have responsibility over the same premises or workplace – for example, in large office buildings, or malls. The Order makes it clear that more than one business may operate in the same, or shared, space provided that each business complies with all requirements in the Order that apply to it.4 Businesses may therefore be required to collaborate to identify and implement the required protocols. 
As with Alert Levels 3 and 4, not all measures in the Government's Alert Level 2 guidance (available here) – such as the encouragement to implement alternative working practices where possible – are mandated by the Order, which implements "minimum" requirements from a public health perspective. 
The Government expects businesses to consider what additional steps they should implement to promote safety and businesses must continue to meet their obligations under the Health and Safety at Work Act 2015. Businesses will therefore need to consider what specific risk mitigation measures are appropriate for their workplace – WorkSafe is developing further guidance on this.
  1. COVID-19 Public Health Response (Alert Level 2) Order 2020, cl 10.
  2. COVID-19 Public Health Response (Alert Level 2) Order 2020, cl 11.
  3. COVID-19 Public Health Response (Alert Level 2) Order 2020, cl 12.
  4. ∧ COVID-19 Public Health Response (Alert Level 2) Order 2020, cl 9(4).

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.

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