On Tuesday 31 August 2021 at 11:59pm, all of New Zealand south of Auckland moved from Alert Level 4 to Alert Level 3. Northland joined the rest of the country at Alert Level 3 on 2 September 2021 at 11:59pm. Meanwhile, Auckland remains at Alert Level 4.
The mandatory requirements for Alert Levels 3 and 4 are set out in the (amended) COVID-19 Public Health Response (Alert Level Requirements) Order (No 10) 2021 (Order) (available here).
This alert focuses on key changes for businesses in the new Order, particularly the interaction between Level 4 and Level 3 regions. For more information on the requirements at Alert Level 4 for Auckland, see our previous alert (available here).
Level 3 restrictions
The main difference at Level 3 is that all businesses can operate, provided they comply with applicable prohibitions on customers and clients entering the premises and the relevant social distancing requirements (eg contactless collection and delivery).1 Schedule 3 of the Order sets out those businesses that can have customers on their premises (such as supermarkets, dairies, butchers, grocers and petrol stations).
Travel for employees across the Alert Level 3 and 4 boundaries
The Order provides that a person may travel across an Alert Level 4 and Alert Level 3 boundary only if the travel is for one or more of the permitted purposes and, as far as reasonably practicable, the person travels directly without stopping while in the other Alert Level area (except for the permitted purpose of the travel).2
Business or work travel across Alert Level 4 and Alert Level 3 boundaries is strictly limited, and is permitted only if a person:
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is going to or is carrying out work for an Alert Level 4 business or service (listed in Schedule 2), regardless of whether the business or service is in the Alert Level 4 area;
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will do work at a premises in the same or adjacent district (territorial authority area) of the type permitted at premises during level 4, namely basic operations required to:
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maintain the condition or value of, or clean, premises, equipment or goods in a premise;
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care for animals;
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receive stock or freight;
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enable workers to continue working from home; and
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prepare premises for reopening (and to meet public health guidelines).
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is exempted from the Order, which include employees at certain border services, the New Zealand Police, etc (see the full list at section 43 of the Order).
If business travel is permitted for one of the above reasons, if necessary, such persons can stay in no more than one place as temporary accommodation prior to returning home.
Additionally, there is a new requirement for businesses and services to have systems and processes in place to minimise travel of workers between districts (Level 4), regions (Level 3) and Alert Level areas, and to mitigate the risks of spreading COVID-19 that arise to the extent that their workers travel between districts or regions (as the case may be) or Alert Level areas.3
Although eligibility for travel across borders is determined by the Order, MBIE is running a system to obtain business travel documents to facilitate crossings available here. That is the preferred form of evidence, but employers can also provide employees with letters setting out the permitted reason for travel across the border. It is also possible to obtain exemptions from the Order, but MBIE advises that they will rarely be granted.
Supply of non-essential consumer products across Alert Levels
It remains the case that businesses and services within the Alert Level 4 region are not permitted to supply non-essential consumer products through online delivery to either Alert Levels 3 or 4. This may mean for some sectors, being able to operate at Alert Level 3 could still be subject to supply constraints if the source of supply is in Auckland (we note the building sector has engaged the Government on this concern).
On the other hand, if an Alert Level 3 business is complying with the Alert Level 3 social distancing and contact tracing requirements in the Order,4 there is no restriction on it supplying non-essential products via online delivery to areas at both Alert Levels 3 and 4.5 That is because freight and logistics businesses are Alert Level 4 business that are permitted to cross the border.
New mandatory contact tracing requirements
The Order contains a new requirement for certain businesses and services at both Alert Levels 3 and 4 to have systems and processes in place to ensure, so far as is reasonably practicable, that each person aged 12 years or older:6
This mandatory record keeping requirement comes into effect from 11:59pm tomorrow, 7 September 2021. Schedules 2 and 3 specify whether the requirement applies to a business, and includes health services, pharmacies, post and courier services, primary industries, key utilities, and key communications. For courts and tribunals, health services and social services, the requirement does not apply to workers – ie only visitors are covered.
The Government has indicated that this requirement will apply at all Alert Levels.
Additionally, new data retention and destruction obligations for contact tracing records mean that data collected through alternative contact tracing records must be kept for 60 days and disposed of after that.7
If you would like to obtain more clarity on what the Alert Level 3 and Alert Level 4 requirements mean for your business, please get in touch with one of our experts below.
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.