14.04.2020

COVID-19: Health and Safety in essential businesses

In response to the Covid-19 pandemic, New Zealand’s alert level is currently at Alert Level 4.

Alert Level 4 means New Zealanders not working in essential businesses must stay at home and stop all physical interactions with others outside of their household.

Schedule 1 of the Employment Relations Act 2000 defines “essential services” for the purposes of strike/lockout action.  The ‘essential business’ definition for pandemic purposes is similar but far wider.

The Ministry of Business, Innovation and Employment has stated that essential businesses are businesses that support people and provide the necessities of life for New Zealanders. This will ensure that food, medicine, healthcare, energy, fuel, waste-removal, internet and financial support will continue to be available.  The Government has indicated that it wants as many businesses as possible to close, to try and minimise the spread of Covid-19, while still allowing access to the necessities of life.

Essential Businesses are defined here

The Government has indicated that this list is likely to evolve, and we are already seeing further clarifications and amendments as specific issues are worked through. 

In particular, it has been clarified that even if a business meets the definition, it may remain open only to the extent necessary to fulfil the essential service.  So for example, if a business is part of the supply chain for essential businesses, it may continue to supply those critical products and services to essential businesses only. 

Implications for essential businesses

Essential businesses will continue working while level 4 remains in place, but these businesses must put in place alternative ways of working to keep employees safe.

The Prime Minister has indicated that this will require all persons conducting a business or undertaking (PCBU) which is an essential service to operate in a way that limits public health risks by taking the following measures:

  • minimise, or eliminate if possible, physical interactions amongst staff and with and between customers; and
  • ensure appropriate health, hygiene and safety measures are in place.

These practices may include:

  • working from home as far as possible;
  • limiting, or eliminating if possible, physical interaction between staff, e.g. through physical distancing, split shifts, staggered meal breaks and flexible working arrangements;
  • limiting, or eliminating if possible, physical interaction with and between customers, e.g. through online or phone orders, contactless delivery or managed entry (while also avoiding crowding outside), and physical distancing both inside and outside the premises;
  • hygiene basics of hand washing and sanitisers;
  • frequent cleaning of premises, especially counters and EFTPOS terminals, and other high-touch surfaces (cleaning advice is available on the Ministry of Health website); and
  • providing protective equipment for staff as appropriate.

Don’t forget risks unrelated to Covid-19!

The normal requirements of the Health and Safety at Work Act 2015 (HSWA) continue to apply.  Any measures put in place to minimise the spread of Covid-19 will be in addition to usual health and safety processes – in addressing one pressing problem, businesses cannot afford to ‘take their eye off the ball’ and allow other safety standards to slip.

The last thing that any business (or family) needs is a workplace injury arising out of a failure to ensure ‘normal’ safety processes and procedures are applied.

Risks created by novel working arrangements

It is fair to say that the general populace is anxious or stressed due to the uncertainty the epidemic has created.  The management of stress, and any resulting fatigue (including arising out of shift work or additional work) is an issue that essential businesses will need to consider to varying degrees.

One solution to physical distancing is requiring workers to work remotely.  That in itself creates potential risk, and essential businesses will need to ensure processes for regular welfare checks.

Other solutions may include shift-based working, and staggered meal breaks.  However, these can also create their own risks – persons conducting a business or undertaking (PCBUs) must ensure that in splitting shifts or staggering breaks, that there are enough workers to perform the tasks safely, and that each worker has appropriate training and supervision. 

The rapidly changing situation requires pragmatic approaches, but this must be guided by the obligation to ensure, so far as is reasonably practicable, the health and safety of all workers influenced or directed by the PCBU. 

PPE

Remember it is the PCBU’s obligation to provide all PPE where PPE is an effective means of controlling a particular risk. Paying an allowance for PPE does not immunise the PCBU against liability.  There has been some debate as to whether PPE can eliminate or minimise the risk of contracting Covid-19, but this will depend on the circumstances, and PCBUs should (always!) err on the side of caution.

So far as is reasonably practicable, the PCBU must ensure that PPE is suitable and meets the required standard for the work being performed.  Our advice is that PCBUs should not make assumptions about PPE – ensure it is verified to be effective.  Finally, the PCBU is responsible for ensuring its use, and that it is used correctly.  Training and unambiguous directions to utilise the PPE is essential.

Engagement & Participation

As methods, places, and timing of work changes, new risks may be created.  It is vital that PCBUs engage with workers to identify, assess and manage these additional or novel risks.  While face to face meetings may not be workable or appropriate to consult with workers, engagement can take place in other ways – and it may be that PCBUs are more reliant than ever on the assistance of Health and Safety Reps and Committees.  Workers are often in the best position to identify risks related to the work that they themselves are doing. PCBUs need to ensure that workers are encouraged and supported to raise these issues so that they can be eliminated or minimised.

Final Word

 Workplace Health and Safety needs to be managed, even (and perhaps especially) in a pandemic.  It is vital for businesses to remember that managing risks is a continuous process.  PCBUs need to consider what risks are created by Covid-19 and how these will be managed, but just as importantly, how the management of one risk might create another. 

If you have any questions about health and safety, please get in touch with our team or your usual contact at Hesketh Henry.

 

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required.

Do you need expert legal advice?
Contact the expert team at Hesketh Henry.
Kerry_100x100 1
Media contact - Kerry Browne
Please contact Kerry with any media enquiries and with any questions related to marketing or sponsorships on +64 9 375 8747 or via email.

Related Articles / Insights & Opinion

Bereavement Leave Confirmed for Miscarriages and Stillbirths 
New Zealand has become the second country in the world to pass legislation that provides bereavement leave for mothers and their partners after a miscarriage or stillbirth.
26.03.2021 Posted in Business Advice & Employment Law
Court of Appeal Overturns Employment Court’s Decision in Tourism Holdings
Tourism Holdings Limited v A Labour Inspector of the Ministry of Business, Innovation and Employment (Tourism Holdings) is the first decision in which the Employment Court considered section 8(2) of the Holidays Act 2003 (Act). The Court of Appeal has recently overturned this decision.
26.03.2021 Posted in Business Advice & Employment Law
Guarantees must be in writing and signed to be enforceable
For a guarantee to be enforceable, the requirements set out in section 27 of the Property Law Act 2007 (Act) must be strictly complied with.  This is what the NZSC held in Brougham v Regan. The key i...
19.03.2021 Posted in Business Advice
UK Supreme Court Delivers Decision on Uber Driver Employment Status
The distinction between employee and independent contractor can be complex, particularly where the nature of the business model blurs the lines of standard employment practices.
16.03.2021 Posted in Business Advice & Employment Law
Holidays Act Overhaul – Taskforce Recommendations
There have been calls for an amendment of the Holidays Act 2003 (Act) for some time.
16.03.2021 Posted in Business Advice & Employment Law
Unwanted Land Covenants and Easements: Seeking a Court Order
The Supreme Court recently considered an application by Synlait Milk to modify a land covenant restricting the burdened land use to farming, grazing and forestry operation to protect the ability of the benefited land owner to develop a quarry.  This article looks at the circumstances in which the courts might give relief to parties in an application to extinguish or modify a covenant or easement.
15.03.2021 Posted in Property Law
New ICC Arbitration Rules 2021 come into force
The revised International Chamber of Commerce (ICC) Arbitration Rules for 2021 (2021 Rules) have now come into force and apply to all ICC arbitrations begun after 1 January 2021.  While the new Rules...
10.03.2021 Posted in Litigation & Dispute Resolution
Send us an enquiry
For expert legal advice, please complete the form below or call us on (09) 375 8700.
  • This field is for validation purposes and should be left unchanged.
-->