News & Thinking

Operational changes for businesses under Alert Level 3

Contributed by:

Kathryn McKinney
Partner

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Kathryn McKinney


The Government has announced that Alert Level 3 will commence at 11.59pm on Monday 27 April 2020.

At Level 3 some businesses that were not operating under Alert Level 4 will be permitted to operate under strict restrictions. Sectors able to return to work include construction, forestry and some retail (subject to restrictions).

Please note that the Wage Subsidy scheme and the Essential Workers Leave Support scheme will continue to be available under Alert Level 3.

General principles under Alert Level 3

  • Stay at home and limit transmission
  • Continue to work and learn from home if you can
  • At-risk people should stay at home
  • If returning to work, make your business COVID-19 safe. See our infogram for key issues to consider. 
  • Stay regional – keep two metres away when travelling, and avoid making any trips
  • Keep your bubble as small as possible
  • Maintain general hygiene; wash hands with soap, cough and sneeze into elbow
  • If sick, stay at home and get advice from health-line or your GP immediately

What does this mean for your business?

The Government has made it very clear, that workers must still work from home if they can. Therefore, if your employees are able to work from home and have been doing so during Alert Level 4, then they must continue to do so during Alert Level 3. The key message for Level 3 is to permit “contactless” work.

If your business is only going to be accessed by staff and does not have a customer facing function (such as building, construction, or forestry), then you can open under very strict health and safety guidelines and physical distancing rules.

If your business is in retail then you can only open for online or phone purchases and contactless delivery or contactless pickups/click and collect. Only supermarkets, dairies, and petrol stations are permitted to open physical storefront retail to customers.

Like in Alert Level 4, businesses are encouraged to use alternative ways of working. For example shift-based working, staggering meal breaks, or flexible work arrangements to limit the number of workers on site at any given time.

Please note that if any changes are required to employees’ contracted hours or conditions, this should be mutually agreed and negotiated in good faith.

When can my business start doing client facing work?

Unless your business is an essential service, at Alert Levels 3 and 4, all client meetings should be held remotely.

What do I need to do in order to safely open for business next week?

You must take account of:

  • Government Alert Level requirements,
  • Public health requirements, and
  • All other health and safety obligations under the Health & Safety at Work Act 2015.

Businesses must have a safety plan in place (even if they have been open as an essential business) that addresses risks related to COVID-19. You are encouraged to consult with your employees about the risks included in that plan. You can break it down to cover matters such as, travelling to work, entering work, steps to be taken at work to ensure safety and reduce transmission, and how your business will respond to an employee becoming sick.

Keys things to consider in the safety plan will be, distancing, PPE, tracing workers movements, and dealing with contractors. Businesses must have a record of where their employees have been and who they have come in contact with. Physical distancing rules are essential; two metre separation is best practice but less than two metres and more than one metre is acceptable if there are other measures in place.

My employee is unable to attend work because they have no access to childcare and schools are closed. How should I handle this situation?

Employers and employees must continue to act in good faith and try to work to resolve these issues, following normal employment law principles. Schools and early childcare centres will be open at Alert Levels 1 – 3, but may not be able to have all enrolled children on-site.

If the employee is unable to attend work because of other commitments, you should have a discussion with the employee directly. You could consider options for flexible work arrangements, working from home, or if the employee can do no work at all then discuss leave arrangement options (special leave or annual leave options). If you are an essential worker, you can access the Government’s childcare scheme.

Please note that if you are receiving the Wage Subsidy, then you must at least pass the full amount received on to that employee, even if they are unable to work.

My employee has someone who is at risk in their bubble. Can I ask them to stay at home?

The guidance is clear on this, there has to be a clear separation between people at risk people not at risk. You must sit down with the employee and have a conversation with them to form a plan about working from home, and if they cannot work from home then how the time off will be processed and recorded.

My business is a retail store or a restaurant. We will be partially operating during Level 3, and I will not require all my employees to work. How do I fairly select which employees can work during Alert Level 3?

As mentioned above you are required to continue acting in good faith and follow normal employment law principles. One option you could look to is dividing your workface into groups and asking them to work rotational periods, either in weeks, days or shifts. Those working should receive their normal pay for the hours worked and those who are stood down could receive subsidy payments only. This will ensure that all employees are treated equally and fairly. You can adapt any rotating schedule that suits you. You will need to consult with the employees and ensure that they are in agreement with the arrangement.

We consider that the government will likely announce further guidance for businesses can operate in Alert Level 3. In the meantime, if you have any questions regarding operating during Alert Level 3, please feel free to contact one of our employment team experts.

Disclaimer: The material contained in this document is provided only as an information source, and is correct at the time of writing. The material is a generalised summary of the key issues and is not intended as a substitute for specific professional advice and should not be relied on for such a purpose. Independent professional advice should be obtained before relying on any aspect of this material and we would be happy to assist in this regard.

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