COVID-19: Can your business operate at Alert Level 4?

The COVID-19 Public Health Response (Alert Level Requirements) Order (No 9) 2021 (Order) came into force at 11.59 pm on 17 August 2021, returning all of New Zealand to the strictest level of ‘lockdown’.

The Order was made under section 11 of the COVID-19 Public Health Response Act 2020 (Act) in accordance with section 9 of the Act.

Last year, the essential businesses list, published on the covid19.govt.nz website, was updated frequently and caused a degree of confusion. This time around, Government has replaced the concept of an “essential business” with a more prescriptive list of “Alert Level 4 businesses or services”.  These are all listed in the Order itself and we do not expect to see the same level of changes or updates occurring during Alert Level 4. That being said, the Government’s “Doing Business at Alert Level 4” guidance provides additional detail that does not appear in the Order itself.

Businesses must close during Alert Level 4 unless the business is an “Alert Level 4 business or service” and is “operating in compliance with the Alert Level 4 requirements”. 30 categories of “Alert Level 4 businesses or services” (which are able to continue operating) are listed in Schedule 2 of the Order.  Schedule 2 specifies, in respect of each category, whether customers / clients are allowed in the workplaces; whether a reduced (i.e. 1-metre) physical distancing rule applies, and any other additional conditions. This is subject to certain further exemptions (see further below).

Guidance on the covid19.govt.nz website has clarified that, of the 30 categories listed in Schedule 2, only the following businesses can open to the public and have customers on their premises;

  • supermarket, dairy or food bank
  • pharmacy
  • liquor store (only Licensing Trust stores in the 4 Licensing Trust Areas with a monopoly can sell alcohol)
  • petrol station
  • self-service laundry
  • hardware store, for trade customers only
  • health service, or an entity involved with the deceased or producing health sector materials
  • accommodation service
  • court or tribunal
  • social and community-based service to maintain critical wellbeing or crisis support
  • emergency service
  • Parliamentary services
  • transport and logistics service, including passenger transport by road, rail, air or sea
  • school hostel.

Exemptions

The Order does not prevent a business continuing “minimum basic operations” (which is not defined in the Order) required 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 to continue to work, remotely from their homes or places of residence.

It also does not prohibit businesses preparing the premises for opening (and to meet public health guidance).

Physical distancing requirements for Alert Level 4 businesses or services

The Order sets out both 1-metre and 2-metre physical distancing rules. Alert Level 4 businesses or services must have systems in place to comply with the 1-metre physical distancing rule (rather than the 2-metre physical distancing rule) for all workers. However, the business or service must have systems in place to ensure that the 2-metre physical distancing rule is complied with for any other persons entering the workplace.

Support for business

Various financial support packages are available to businesses at this time (see details here). If you need help identifying or understanding how any of these support programmes may apply to your business, with making applications or with the compliance requirements that may follow, please get in touch with our Public Law team or your usual MinterEllisonRuddWatts contact.

This article was co-authored by Nathalie Harrington, a senior solicitor in our Public Law team.

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