The Government has put in place a principles-based system but has warned businesses “if you are in doubt about whether you are an essential service, then you are probably not".
“While guidance has been offered – including via a Government operated 0800 number and email service (email@example.com) – making the critical determination of whether a business provides an essential service may remain unclear for many businesses".
At midnight on 25 March 2020, New Zealand moved to alert level 4. It is critical for businesses to consider whether they are providing an “essential service" and whether they should continue to operate (assuming that they cannot do so remotely or on a work from home basis). We recommend seeking legal advice as to whether your specific business provides an essential service, and set out some general guidance below.
What is a “non-essential service"?
At level 4, businesses are physically closed except for essential services (for example; supermarkets, pharmacies, clinics) and lifeline utilities. Only businesses that are essential for providing the necessities of life may remain open.
In relation to the escalating restrictions on businesses which provide “non-essential services", the Government's Unite against COVID-19 website notes “at all levels, health services, emergency services, utilities and goods transport, and other essential services, operations and staff, are expected to remain up and running. Employers in those sectors must continue to meet their health and safety obligations."
An updated list of identified essential services was released by the Government on 24 March 2020. The current list can be found here). The list is not prescriptive, and may be amended or refined at any time. Full details of the 15 sectors identified as essential and the relevant entities engaged in each sector at the time of publication can also be found at the end of this item.
The Government also announced that any sector or entity specified as either:
- a “lifeline utility", under Schedule 1 of the Civil Defence Emergency Management Act 2002, or
- an “essential service", under Schedule 1 of the Employment Relations Act 2000,
- is an “essential service" for the purposes of continuing operations while New Zealand's COVID-19 response remains at alert level 4.
During the 23 March 2020 announcement, on the forced physical closure of businesses engaged in non-essential services, Rt Hon Jacinda Ardern clarified:
(a) Supermarkets, doctors, pharmacies, service stations and access to essential banking services will be available throughout New Zealand at every alert level. Businesses who are part of the food supply chain, including those who provide to New Zealand's supermarkets, and who are part of New Zealand's essential primary industries (e.g. Fonterra, Federated Farmers), are “essential services" which will continue operating at alert level 4. At 8pm on 23 March 2020 the Government expanded the range of “essential services" carried out in the fast-moving consumer goods sector to cover the supply, delivery, distribution and sale of all key consumer goods essential for maintaining the wellbeing of people.
(b) Non-essential businesses in New Zealand must close. All bars, restaurants, cafes, cinemas, pools, museums, libraries, playgrounds and any other place where the public congregates must close their face-to-face function. Businesses which provide takeaway services must close their operations.
(c) Over the next 48 hours, every workplace (that is not an essential service) must implement flexible working arrangements. Employees of all businesses which provide a non-essential services must work from home.
(d) Essential services must put in place alternative ways of working which ensure physical distancing between staff of at least two meters, or the utilisation of appropriate protective equipment.
(e) Schools will close from 24 March 2020, except to the children of essential service workers (including, but not limited to, doctors, nurses, ambulance drivers and police). Schools will close entirely from midnight 25 March 2020. A list of who is considered an “essential services" worker will be distributed to parents directly.
In short, from midnight on the 25 March 2020, all businesses which provide “non-essential services" must close their physical business premises, from which they conduct any face-to-face operations. Food businesses which provide take-out services must also cease those services. Wherever possible, employees of non-essential businesses are expected to work from home. In so far as they are able to do so, there is nothing which prevents non-essential businesses from conducting their business operations remotely from home.
Businesses which provide an essential service must implement alternative working measures which ensure employees maintain at least two meters of physical distance between each employee, and must utilise appropriate protective equipment wherever possible.
Decisions on “essential services" to date
On 24 March 2020, Cabinet confirmed:
- Dairies can remain open, but must implement a “one-in-one-out rule", and cannot sell cooked food.
- Food delivery is prohibited, except meals-on-wheels and whole food delivery e.g. subscription boxes.
- Liquor stores that are not within Licensing Trust areas must close. Liquor stores within Licensing Trust areas may implement a “one-in-one-out" rule.
- Self-service laundries can remain open, but must enforce social distancing.
- Retirement villages are an “essential service".
- The Warehouse must close.
- Bunnings, Mitre 10, Placemakers and other retailers essential to the supply chain for building and construction can remain open to trade customers, for essential purposes (e.g. in connection with essential service construction, or construction of critical infrastructure), only.
- Pulp and paper plants are to shut down any non-essential elements in a way that allows production to recommence easily, and while maintaining essential production.
The full list of essential businesses
As at 25 March 2020, the following entities and services in the identified sectors are considered essential:
- Any entity that provides accommodation services for essential workers, isolation/quarantine, and emergency housing.
- Retirement villages.
2. Border: Customs New Zealand, Immigration New Zealand and the Ministry for Primary Industries.
3. Building and construction
- Any entity involved in building and construction related to essential services and critical infrastructure.
- Any entity involved in building and construction required immediately to maintain human health and safety at home or work.
- Any entity that performs or is involved in building and resource consenting necessary for the above purposes.
4. Courts, tribunals and the justice system
- Courts of New Zealand, tribunals.
- Critical Crown entities (e.g. the Electoral Commission).
5. Education (at level 3 only)
- Any person employed or contracted as teaching, nursery and childcare staff, including specialist education professionals and others who provide support (e.g. to disabled children).
- Any person employed by or contracted to an educational facility.
- Any entity supplying educational facilities or educational materials (e.g. printers).
6. Fast-moving consumer goods
Any entity involved in the supply, delivery, distribution and sale of food, beverage and other key consumer goods essential for maintaining the wellbeing of people.
7. Financial Services
- Banks, insurers and other financial institutions, including any entity that contracts or provides services to them (e.g. secure money delivery services).
- Securities registries.
- District Health Boards (and all of their facilities), Pharmac, New Zealand Blood Service, Health Promotion Agency, Health Quality and Safety Commission.
- Any person employed or contracted as a doctor, nurse, midwife, pharmacist, paramedic, medical laboratory scientists, kaiāwhina workers, social workers, aged care and community workers, and caregivers more generally.
- Hospitals, primary care clinics, pharmacies, medical laboratories, care facilities (e.g. rest homes).
- Any entity providing ambulance services.
- Any entity involved with the deceased/tūpāpaku (e.g. funeral homes, crematories, cemeteries).
- Any entity producing health sector equipment, medicines and personal protective equipment.
9. Local and national Government
- Any entity involved in COVID-19 response, enforcement, planning or logistics or that has civil defence/emergency management functions (including any entity that supplies services for these purposes).
- Key public services (see point 10 below for agencies).
10. Primary industries, including food and beverage production and processing
- Any entity involved in the packaging, production and processing of food and beverage products, whether for domestic consumption or export.
- Any entity involved in relevant support services, such as food safety and verification, inspection or associated laboratory services, food safety and biosecurity functions.
- Any entity providing veterinary services.
- Any entity whose closure would jeopardise the maintenance of animal health or welfare standards (including the short-term survival of a species).
11. Public safety and national security
- The Department of Corrections, Fire and Emergency New Zealand, Ministry of Defence, Ministry of Justice, New Zealand Defence Force, New Zealand Police, New Zealand Security Intelligence Service, Government Communications Security Bureau.
- Courts of New Zealand.
- Any person employed or contracted in a public safety or national security role.
- ESR, GNS, GeoNet, NIWA, MetService.
- Any entity (including research organisations) involved in COVID-19 response.
- Any entity (including research organisations) involved in hazard monitoring and resilience.
- Any entity (including research organisations) involved in diagnostics for essential services like biosecurity, public health.
- Laboratories and Physical Containment level 3 (PC3) facilities that could provide essential services and products that could be used to respond to COVID-19.
- Other significant research facilities including animal facilities, clinical trials and infrastructure that requires constant attention (e.g. samples, collections and storage facilities) that are important to New Zealand.
13. Social services
Entities, including non-Government organisations, that provide welfare and social services to meet immediate needs, to be specified jointly by the Ministry of Social Development and Oranga Tamariki.
14. Transport and logistics
- Ministry of Transport, New Zealand Customs, New Zealand Transport Agency, Civil Aviation Authority (including Aviation Security Service), Maritime New Zealand (including the Rescue Coordination Centre), Airways NZ, MetService, KiwiRail (including Interislander), and any entity which is contracted by these entities.
- Any entity that provides, or is contracted to an entity that provides, logistics services, including New Zealand Post and courier services.
- Any entity providing, or is contracted by an entity that provides, transport services to the Ministry of Health, a District Health Board, a Medical Officer of Health, or a Controller (as defined in section 4 of the Civil Defence and Emergency Management Act 2002).
- Any entity which provides services related to the maintenance and ongoing operation of critical infrastructure (e.g. roads, rail, ports, airports).
- Any entity which operates or is contracted by an entity listed in Schedule 1 of the Civil Defence and Emergency Management Act 2002, an aerodrome, a passenger and/or freight aviation service, a passenger and/or freight shipping service, a road freight service, a rail freight service, a vehicle recovery service; or a public transport service (under contract with a Regional Council).
- Any small passenger service vehicle driver (who holds the relevant licence).
- Any entity providing services to keep vehicles operational for essential work purposes (e.g. vehicle testing, mechanics, tyre services).
15. Utilities and communications, including supply chains
- Any entity involved in the production, supply, sale distribution or disposal of electricity, gas, water, waste water (e.g. sanitation), waste (e.g. rubbish collection), fuel, telecommunication services, and any entity that is contracted by these entities.
- News (including news production) and broadcast media.
- Internet service providers.
- Any entity that provides maintenance and repair services for utilities and communications, including supply chains.
- Any entity supplying services to an essential workplaces that are required for the safe operation of that workplace (e.g. cleaning, security services).
Alternative ways of working
Essential services businesses will continue working but will put in place alternative ways of working to keep employees safe. This will, depending on the industry, include shift-based working, staggered meal breaks, flexible leave arrangements and physical distancing.
If you are in any doubt as to whether your particular business, or aspects of it, are an essential service which ought to continue to operate (either stand-alone or as part of the critical chain of supply for another essential service), please contact the authors or your usual Bell Gully adviser.
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