Although Auckland is currently in Alert Level 3, most businesses can lawfully operate with certain constraints, provided they have systems and processes in place to ensure measures are taken to manage the risk of COVID-19 transmission.
The COVID-19 Public Health Response (Alert Levels 3 and 2) Order 2020 (“Order”) came into force at 11:59 am on 12 August 2020. Under the Order, businesses and services are classified into a number of categories – Category A business or service, Category B business or service, Public transport service, Venue business, and Category C business or service.
Category C requirements
This article only deals with those who fall into Category C business or service, which will cover many of the businesses that have been informally referred to as ‘non-essential’ services. In order for a Category C business to operate, it must have systems and processes in place to ensure the following Alert Level 3 requirements are met.
No contact with customers
No customers or clients may enter the premises, and there must be no close physical contact with any customers or clients. That said, businesses may put in place systems and processes which allow customers to collect goods through any method which minimises any physical contact and does not involve any customers entering a building.
Physical distancing
Physical distancing must be maintained by all persons accessing and using the premises, so far as is reasonably practicable, taking into account the nature of the business or service. Category C businesses must have systems and processes in place to mitigate the risks that arise if physical distancing is not fully maintained on premises.
Contact tracing
A copy of the QR code for the business must be displayed in a prominent place at or near the main entrances to the workplace(s). Further, systems and processes must be in place to support contact tracing of persons who access or use the premises.
Other recommended measures
In addition to the express terms of the Order, the Government has also provided ample guidance on doing business at Alert Level 3:
https://covid19.govt.nz/business-work-and-money/business/doing-business-at-alert-level-3/
It is noted that not all of the guidance will be strictly and legally necessary. However, they are recommended to promote good practices aimed at minimising the transmission of a highly infectious virus.
Workers
We turn now to the restrictions on the movement of workers under the Order. In particular, the Order requires all persons in the Auckland region to maintain physical distancing, and to remain at their home or place of residence, except for ‘essential personal movement’.
Essential personal movement
Among other things, ‘essential personal movement’ includes leaving home “for the purpose of providing a business or service that has the alert level 3 requirements in place”. In other words, workers are able to travel to and from work, provided the business has systems and processes in place to ensure the above Alert Level 3 requirements are met.
Conclusion
Although Auckland is currently in Alert Level 3, most businesses can lawfully operate by adhering to certain constraints, provided they have systems and processes in place to ensure the relevant requirements are met. Likewise, workers can travel to and from their work if their employer has the Alert Level 3 requirements (outlined above) in place.
As the Order does not preclude employees from attending their work, the potential argument that employees are not ready and able to attend work is unlikely to be available under the present Alert Level 3. As such, we consider that employees continue to be entitled to receive payment in accordance with the terms and conditions of their employment agreement. If an employer does not have sufficient work due to the Alert Level 3 measures, it is likely that the employer needs to seek the employee’s agreement to reduce their contractual entitlements.
Monthly Advisory Service
At Jennifer Mills & Associates, we are experts in employment, immigration and health and safety law. We are able to provide an advisory service for all employment, health and safety and immigration law matters. We are able to provide this as a monthly service, and can work with managers to implement effective and efficient strategies for their businesses.
If you would like to know more about this special service, please contact Jennifer Mills at jennifer@jennifermills.co.nz.
