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.
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.
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.