At 9.30pm on 30 November 2021, the New Zealand Government gave official notice of the COVID-19 Public Health Response (Protection Framework) Order 2021 on the Gazette. I guess that "COVID-19 Public Health Response (Traffic Light) Order 2021" didn't have the same ring to it.
This Order adds to the nightmare that is my life. It's been a very long time since I've pulled an all-nighter to study law, however, desperate times need desperate measures. This blog post therefore comes with a disclaimer: as a result of the rushed lawmaking of the New Zealand Government, I am equally required to provide rushed advice.
This is not a situation I like to be in: however, the reality is that legal representatives have 48-hours to read, understand, interpret and apply the Order to various situations.
(PS: I will likely amend this article after it's been proofread. If there are new developments I will amend this post, rather than create a new one. I will endeavour to keep this as up-to-date as possible).
Employment Obligations
This Protection Framework Order will create significant obligations for employers. In my experience, the best thing you can do as an employer, is sit down with your employee and assist them understand the legal framework. Instead of a traditional consultation process, it may be wise to consider engaging a representative or HR consultant to give a short seminar and/or Q&A session on the legislation. This will allow your employees to understand the law, and therefore, provide better feedback.
Be genuine with your employees. You are bound by this law, but you did not create it. You can tell your employees that, as you see it, you are only able to continue their employment if:
They have a legal medical exemption, as provided under the Vaccinations Order.
By interpretation, they are not an "affected person."
The terms and conditions of their employment can be amended, to the effect that they are no longer an "affected person."
This will help your employee focus their feedback.
Once you've genuinely considered your employee's feedback, if there are no redeployment opportunities available, you are required to provide paid written notice of four weeks. Please be mindful that it is likely that you will be required to pay any public holidays that fall within the notice period (and which would otherwise be working days).
If in doubt, consider seeking legal advice. There are risks associated with terminating an employee's employment, and there are risks associated with potentially breaching either the Vaccinations Order or the Protection Framework Order.
If you cannot afford legal advice, and you're concerned about your obligations, please remember: aggrieved employees raise personal grievances. It's not always "what" you do, it's "how" you do it. Approach the situation with good faith. With respect. With kindness. With understanding.
Employees: I've written a significant number of other blog posts that will be of assistance.
General Rules
Infringement Offences
48-hours after notification of the Protection Order, the Government notified us of another amendment: relating to infringement offences. This is what an infringement notice will look like.
These infringement offences are broken into "infringement fees" and "fines". From what I can ascertain, an enforcement officer can issue an "infringement offence" which will contain an "infringement fee." If you dispute this fee, the Court may instead issue a "fine" which is significantly larger than the original fee.
In addition:
A person commits an offence if the personal intentionally fails to comply with a COVID-19 Order. A person who commits an offence of this type is liable to imprisonment for a term not exceeding 6 months, or a fine not exceeding $12,000. This will be applicable for any section which does not specifically state whether it is a low, medium or high risk infringement.
A person commits an "infringement offence" if they breach the Vaccinations Order.
COVID-19 Vaccination Certificate
A person is COVID-19 Vaccination Certificate ("CVC") compliant if they hold a valid CVC, or are under the age of "12 years and 3 months."
If a regulated business or service wants to alternate between operating under CVC rules and non-CVC rules, the business or service must have systems and processes in place (for example, regular cleaning of surfaces) to mitigate the risks of spreading COVID-19 that arise from alternating between those rules.
All regulated businesses must display their CVC status. Failure to do so is a "medium risk infringement offence."
QR Codes
GREEN LIGHT and ORANGE LIGHT and RED LIGHT
All businesses must display a QR code in their workplace, and must have an alternative contact record system and processes. The following businesses or services must have systems and processes to ensure people are scanning the QR code or otherwise providing contact records:
Close-proximity businesses or services.
Courts and Tribunals.
Food and Drink Businesses or Services.
Gyms.
Health Services (including pharmacies).
Public Facilities.
Specified Social Services.
Failure to do so is a "medium risk infringement offence."
Physical distancing and in-home services
ORANGE LIGHT and RED LIGHT
Physical distancing of 1-metre required at public facilities and retail businesses or services (except retail businesses or services located in a transport station).
If you provide in-home services, you must have systems and processes to keep contact records of workers.
Failure to do so is a "medium risk infringement offence."
Other powers
This Protection Order has been created to allow Parliament the option to implement additional measures with only 48-hours notice. These measures are not currently applicable, but are an available tool:
The closure of businesses or services (these are separated into "Category 1" and "Category 2")
Restrictions on movement and related requirements.
Travel restrictions (and the ability for only the CVC compliant to travel).
You can read about cross-boundary travel here.
Face Coverings
A face covering is defined as a covering of any type that covers the nose and mouth of a person. However, a person is not required to wear a face covering if they are under the age of 12, or if they have a physical or mental illness or condition or disability that makes wearing a face mask unsuitable.
A breach of the face covering rule at any level is a "medium risk infringement offence."
GREEN LIGHT
Face coverings are required for employees of a close-proximity business or service (defined below), or for all employees of a business that is not CVC compliant. Workers who are able to maintain a two-meter physical distance are not required to wear masks. These businesses and services are required to have systems and processes to ensure workers have face coverings.
ORANGE LIGHT
Face masks are required for the following premises, people or circumstances:
Air transport service.
Public Transport Services.
Retail businesses, public facilities, pharmacies, veterinary services and animal health and welfare services that are open to the public.
Courts or tribunals (except where a judicial officer has exercised discretion).
Specified social services that are provided in an indoor public area (meaning a service provided under the Oranga Tamariki Act 1989, and other social services provided to support persons to maintain critical well-being and as crisis support for people who are unsafe or homeless).
Public area operated by New Zealand Post.
Premises operated by a central government agency, a local authority, or the New Zealand Police. which are considered an "indoor public area."
If the person is not a patient or employee, masks are required at the premises of a health service.
Workers at a food and drink business or service, or a close-proximity business, but only when they are working with customers or clients on the premises.
Workers delivering goods.
RED LIGHT
Face masks are additionally required when indoors at tertiary education premises, and for visitors of an indoors licensed early childhood service.
Business or Service: General Definitions
A "business or service" generally includes:
A voluntary or not-for-profit service.
A private sector business or service.
A public sector business or service.
A business or service that provides space for other businesses or services to operate within (for example, a shopping mall or marketplace).
A business or service that provides facilitates or venues for events or activities if people pay to attend an event or participate in an activity or pay to hire a facility or venue.
The playing of sports professionally or semi-professionally.
A customer or client includes any non-paying customer or client.
A worker at a workplace other than their home or place of residence must, as far as is reasonably practicable, remain at least 1 metre away from any other worker at the workplace, and remain at least 2 metres away from any other person. The business or service must have systems and processes in place to maintain compliance with social distancing requirements. If physical distancing cannot be maintained, the business or service must have systems and processes in place to mitigate the risks of spreading COVID-19.
A worker means any person who carries out work in any capacity for that business or service (whether paid or unpaid).
A workplace is defined as being the premises where work is being carried out, or is customarily carried out, for a business or service. It also includes premises where a worker goes, or is likely to be, while at work.
Gatherings and Events
An event means an activity organized by a business or service that is held at:
commercial premises or private premises (whether indoors or outdoors); or
publicly owned premises hired for the purpose of the activity; or
an outdoor area where a group of customers and clients is accompanied or supervised by a worker providing services to that group (for example, a guided tour).
An event is only an "event" where entry is controlled (whether through ticketing, fees, registration, or any other means). An event also includes normal operations at cinemas, theatres, stadiums, concert venues, conference venues, casinos and private galleries, but excludes any activity at a private dwellinghouse.
A venue business must have systems and processes in place to ensure that the venue is used only for the purpose of a limited purpose gathering.
By contrast, a gathering means people who are intermingling in a group but excludes people who remain at least 2 metres away from each other:
A gathering to undertake voluntary or not-for-profit sporting, recreational, social or cultural activities.
A gathering to undertake community club activities (except those with a club licence).
A faith-based gathering.
A funeral or tangihanga.
A gathering held in a defined space or premises of a workplace that have been hired for the exclusive use of the gathering by a person.
[VACCINATION] If the business is CVC-compliant, then in accordance with the amended Vaccinations Order, workers who carry out work at a permitted event are required to have their first vaccination by Friday 3 December 2021, regardless of whether the work is carried out before people arrive at, or leave, the permitted event. Please note that the vaccination requirement does not apply to workers at gatherings.
COVID-19 Vaccination Certificate Compliant
GREEN LIGHT and ORANGE LIGHT
Events and gatherings OK. No maximum capacity. The person responsible must have systems and processes in place to ensure, as far as is reasonably practicable, that only people who are CVC compliant are in attendance. If a person is asked for their CVC, they must produce it. QR code should be shown.
RED LIGHT
Events and gatherings OK. The capacity of your gathering or event will depend on the venue. You may have the lesser of 100 people, or the maximum number of people that could occupy the space if each person were to be spaced 1-metre apart.
A breach of a fixed-number gathering or event is a "high risk infringement offence."
NOT COVID-19 Vaccination Certificate Compliant
GREEN LIGHT
Events and gatherings OK. The capacity of your gathering or event will depend on the venue. You may have the lesser of 100 people, or the maximum number of people that could occupy the space if each person were to be spaced 1-metre apart.
A breach of a fixed-number gathering or event is a "high risk infringement offence."
If a "worker' is at a gathering, they must additionally comply with the face covering rule. This is a "medium risk infringement offence."
ORANGE LIGHT
No events. Gatherings will depend on the venue. You may have the lesser of 50 people, or the maximum number of people that could occupy the space if each person were to be spaced 1-metre apart.
A breach of a fixed-number gathering or event is a "high risk infringement offence."
RED LIGHT
No events. Gatherings of no more than 25 people.
A breach of a fixed-number gathering or event is a "high risk infringement offence."
Food and Drink Business or Services
A food and drink business or service means a business that sells, offers, or provides food or drink for consumption to customers and clients in a workplace, such as a restaurant, café, bar or club, and a soup kitchen or other place where food or drink is provided without charge. It also includes a business or service that sells, offers, or provides food or drink in a shopping mall or part of an event.
[VACCINATION] If the business is CVC-compliant, then in accordance with the latest amendment to the Vaccinations Order, all workers of a food and drink business or service must have their first vaccination by Friday 3 December 2021: this includes, employees, business owners, contractors, and so on.
COVID-19 Vaccination Certificate Compliant
GREEN LIGHT and ORANGE LIGHT
Must display CVC status.
Must have systems and processes to ensure each person is carrying a CVC.
RED LIGHT
Fixed capacity limit of the lesser of 100 people, or the maximum number of people that could occupy the space if each person were to be spaced 1-metre apart.
Customers and clients must comply with seating requirements. Customers and clients not complying risk a "medium risk infringement offence."
NOT COVID-19 Vaccination Certificate Compliant
GREEN LIGHT
Must display CVC status.
The maximum capacity is the lesser of 100 people, or the number of people that could occupy the space if each person were to comply with the specified physical distancing rule.
There are seating requirements.
ORANGE LIGHT and RED LIGHT
Must display CVC status.
Must have systems and processes to prevent customers entering workplace except to enable contactless collection of goods.
Close-Proximity Business and Services
A close-proximity business or service means a business or service to the extent that it carries on activities that it cannot undertaken without:
physical contact, or close proximity, between people; or
a worker being closer than 1 metre to the client.
This includes a certified playgroup, but excludes professional and semi-professional sports, and specified social services.
[VACCINATION] If the business is CVC-compliant, then in accordance with the latest amendment to the Vaccinations Order, all workers at a close-proximity business or service must have their first vaccine by Friday 3 December 2021.
COVID-19 Vaccination Certificate Compliant
GREEN LIGHT and ORANGE LIGHT and RED LIGHT
If you adhere to the CVC rules:
Must display CVC status.
Must have systems and processes to ensure each person is carrying a CVC.
NOT COVID-19 Vaccination Certificate Compliant
GREEN LIGHT
Must display CVC status.
Must have systems and processes to ensure workers wear face coverings (even though those workers will already be vaccinated)
Must have systems and processes to comply with 1-metre social distancing.
Must mitigate the risk of spreading COVID-19 where physical distancing cannot be maintained.
ORANGE LIGHT and RED LIGHT
Must display CVC status.
Must have systems and processes to prevent customers entering the workplace.
Gyms
A gym is an indoor exercise facility which access is limited to members.
[VACCINATION] If the business is CVC-compliant, then in accordance with the latest amendment to the Vaccinations Order, all workers who carry out work at a gym must have their first vaccine by Friday 3 December 2021.
COVID-19 Vaccination Certificate Compliant
GREEN LIGHT and ORANGE LIGHT
Must display CVC status.
Must have systems and processes to ensure each person is carrying a CVC.
RED LIGHT
If you adhere to the CVC rules:
Must display CVC status.
Must have systems and processes to ensure each person is carrying a CVC.
Fixed capacity limit of the lesser of 100 people, or the maximum number of people that could occupy the space if each person were to be spaced 1-metre apart.
NOT COVID-19 Vaccination Certificate Compliant
GREEN LIGHT
Must display CVC status.
The maximum capacity is the lesser of 100 people, or the number of people that could occupy the space if each person were to comply with the specified physical distancing rule.
ORANGE LIGHT and RED LIGHT
Gyms cannot effectively operate, as they must prevent customers entering the workplace.
Tertiary Education
[VACCINATION] If the business is CVC-compliant, then in accordance with the latest amendment to the Vaccinations Order, all workers who carry out work at tertiary education premises in Northland, Auckland and specified areas in the North Island, must have their first vaccine by Friday 3 December 2021.
RED LIGHT ONLY
COVID-19 Vaccination Certificate Compliant
Must display CVC status.
Must have systems and processes to ensure each person is carrying a CVC.
Fixed capacity limit of the number of people that could occupy the space if each person were to be spaced 1 -meter apart.
NOT COVID-19 Vaccination Certificate Compliant
Must display CVC status.
Must have systems and processes to ensure each person is carrying a CVC.
Fixed capacity limit of the number of people that could occupy the space if each person were to be spaced 2 -meter apart.
Vaccination Certificates: Individuals
GREEN LIGHT and ORANGE LIGHT and RED LIGHT
Vaccination certificates are required at "food and drink business or services", "close proximity businesses and services" and "gyms." Every person is required to provide their CVC when requested at one of these premises. A breach is a "low risk infringement offence."
If a person is not CVC-compliant, they must not enter these premises that are CVC-only.
Exception; Education
A child, enrolled student, parent or caregiver of that student must not be refused access to education services at the premises. However, the education service may require people to be CVC compliant at a visitor-inclusive event that is hosted at the designated education and care premises.
A person in control of a designated education and care premises must not deny entry to a boarder at a school hostel on education grounds.
A tertiary education provider must not deny entry to a secondary student participating in a secondary-tertiary programme held at tertiary education premises, or a school learning programme of which part is held at tertiary education premises.
Exception: Goods and Services
A person (not an employee) must not be denied access to goods and services on the basis of vaccination, and a person must not refuse entry to people who must enter the premises for the purpose of accessing those goods and services. This will includes supermarkets, dairies, pharmacies, petrol stations, health services, busses and trains. These businesses must not request a person to produce a CVC or other evidence of being vaccinated.
It does not include a domestic air transport service or a Cook Strait ferry.
It does not include New Zealand Courts and Tribunals: signaling a very clear limitation to the right to justice.
CONCLUSION
... it's all a mess ...
Legal AF Limited t/a Ashleigh the Advocate
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