Employment Law
Essential work during covid

With Aotearoa now experiencing the first Level 4 lockdown since the Covid-19 Public Health Response Act 2020 was passed in May last year, the Government has issued a completely new order that sets out the restrictions (and exceptions) for what Level 4 looks like.

The Covid-19 Public Health Response (Alert Level Requirements) Order (No 9) 2021 (the Order) is based on the same three main restrictions that applied during the March 2020 Lockdown:

  • A direction that everyone stays home, except for essential personal movement (cl 15);
  • A direction that all business premises are closed unless they are “Alert Level 4 Businesses or Services” (cl 18); and
  • A prohibition on any outdoor gatherings, except where all of the people live together (cl 18).

The Order also contains other rules that apply even with permitted activities – such as maintaining 2m distance wherever possible and wearing masks on public transport, in taxis or when in shops. New Zealanders are now used to these requirements and have a good understanding of the main requirements of lockdowns. What is less clear is the exceptions – what are they allowed to do outside, and what businesses are still allowed to operate.

Essential Personal Movement

The personal exceptions, or “essential personal movement” under the Order cover a range of issues. Some are very specific – like attending court hearings or returning from MIQ. However, most of the exceptions are more general. The key exceptions for individuals are:

  • Using Essential Services: People are allowed to leave their homes to access businesses that are still operating, so long as they either stay in the same district (measured using territorial authority boundaries) or are going to the nearest option (if it is across the boundary).
  • Attending work: People may go to their place of work if they are working in a business that is allowed to remain open and their work cannot be done from home.
  • Medical or Veterinary Services: People may go out to access medical services, to help someone they live with access medical services, or to get emergency veterinary care.
  • Recreation: People are allowed to go out to a place that is readily accessible from their home (including by vehicle) for recreation, so long as it is not a high risk activity (which includes tramping, swimming, diving, and water sports and motor sports of any kind).
  • Shared care arrangements: As set out in our other article on the topic, leaving home for shared child care is also permitted.

These activities are not exhaustive, but cover the most popular activities that are permitted at Level 4. All of them are also subject to the standard requirements to keep at least 2m from other people and not to meet with people from outside your ‘bubble’.

Business Exemptions

The situation for businesses is more complex. The order sets out a detailed schedule of different “Alert Level 4 Businesses or Services” that are allowed to operate. The important ones to be aware of are:

  • Food and essentials: Groceries, petrol and essential items can still be sold – with non-grocery items needing to be sold via online delivery. The products being sold must be “essential” to qualify.
  • Medical services: Medical providers are allowed to keep operating under Leve 4.
  • Accommodation: Motels and other accommodation providers are allowed to remain open, but must not serve food.
  • Supply Chain: Anyone involved in supplying food and essentials or supporting essential businesses is entitled to continue operating provided that they have appropriate contact tracing in place. This also includes businesses responsible for managing services like gas, water and power.
  • Essential Construction: Construction work can continue if it is necessary for maintaining existing critical infrastructure or to deal with immediate health and safety risks. This includes work on private homes but only if it is for urgently needed repairs. Businesses that supply builders and tradespeople can also stay open, but only for trade customers.
  • Transportation: Taxis and public transport can remain operating.

Other than essential groceries and petrol stations, most essential businesses are not allowed to have customers on-site and need to deal with them remotely. Where customers are on site, they are required to remain 2m apart in most cases.

Penalties

Failure to comply with the Order can result in fines, and in some cases even imprisonment.

Breaching the Order is, in most cases, an infringement offence. This means you can be given a “ticket” for $300 for most breaches. Alternatively, the Police can go to court asking for you to be fined up to $1000.

Where the breach was deliberate, this is also a criminal offence and there is a maximum penalty of six months’ imprisonment. While this will usually be reserved for serious cases, any intentional breach carries a possible criminal conviction. During the March 2020 lockdown, many people who breached received short sentences in prison – deliberate flouting of the law carries a very real risk of similar treatment.

Special Exemptions

The Director-General also has a specific power to allow other exceptions for individuals or groups. Applying for an exemption requires a person to provide a good justification for why they should be exempt. Holland Beckett Law has experience applying for these exemptions, and is happy to discuss your situation if you think that an exemption is appropriate for your business.

Tim works in the litigation team with a particular focus on trust and estates litigation, commercial disputes and criminal cases.