The COVID-19 Series: Chapter One

Chapter One: Food + Beverage, Close Proximity, and Gyms 

Many local businesses and organisations have approached Wakefields Lawyers to help them navigate the new COVID-19 Traffic Light Framework. Our dedicated COVID-19 team have been working overtime to sift through the piles of legislation, orders, and political noise, to get to the heart of what this means for you, your workers, and your business.

The Traffic Light System – What Kind of Businesses are caught?

There is a vaccine mandate for the following businesses and organisations:

• Health workers
• Border workers
• Education providers
• Police and corrections

This has been in place for some time and you should already be well into this mandate process if you are in one of these groups. This article does not deal with these groups.

There are three categories of businesses caught in a big way under these new rules. These are called “regulated businesses”.

Food and Beverage Businesses and Services:

If you serve or provide food or drink as part or whole of your service, you are under this category. Some examples are:

• Cafes
• Bars
• Restaurants 

Close Proximity Businesses and Services:

You will come under this category if your business cannot operate without physical contact, or close proximity between people, OR without a worker being closer than 1 meter to the client. Some examples are:

• Hairdressers
• Massage
• Playgroups

Excluded from this category are:

• Professional sports
• Semi-professional sports
• Specified social services

Gyms:

Rather straight forward.

If your business does not come under these three categories, worry not! We will be posting Chapter Two in the coming days that will cover all other businesses.

There are three stages you will need to work through to ensure you are following the law:

• Stage One: CVC Status
• Stage Two: Workers
• Stage Three: Customers/Public

Stage One: CVC Status

Your starting point is whether you will be only serving customers who have a COVID-19 Vaccination Certificate (“CVC”), or whether you will be serving anyone and not checking for a CVC. The “CVC” is the ‘My Vaccine Pass’ or any official exemptions granted by the Ministry of Health.

This decision has major implications for you and your business.

If you choose to only serve customers with CVC, you will be subject to the “CVC Rules”.

If you choose to not solely serve customers with CVC, you will be subject to the “Non-CVC Rules.”

This is called your “CVC” Status: either you’re using the Pass, or you are not.

The rules for both decisions at this stage are the same:

• You are required to display your CVC status
• You are required to display a QR Code and use contact tracing

The Ministry of Health have downloadable signs for free. You can also request free posters to be sent to you here.

Can I change my mind about my CVC Status?

You can change your mind at any time. You will however need to do a thorough clean of your premises when switching between rule sets.

My business involves hosting different groups of people, can I change between rules to service different groups’ needs?

You can switch between the rules regularly if your business requires it. A good example would be a bar that sometimes hosts wedding receptions:

• Elizabeth and Mr. Darcy are getting married on a Friday. They decide that they want their wedding reception to be at ABC Bar. They want it to be ‘Vaccine Pass only’.
• Romeo and Juliet are getting married on a Saturday. They decide that they want their wedding reception to be at ABC Bar. They do not want it to be ‘Vaccine Pass only’.

ABC Bar can host both wedding receptions. They must mitigate the risk of COVID-19 by:

• Cleaning in between the two receptions, including wiping down all surfaces
• Staff split into two teams, one for each reception and have no cross over
• Follow the rules for each group under the current Traffic Light Setting (see below).

Step Two: Workers

Now that you have made the decision about what your CVC status is going to be, your next step is to consider what rules apply to your workforce.

Here are the rules that you need to follow for both rule sets and at all Traffic Light Levels:

• Your workers will need to wear a face-covering while working with customers.
• Your workers will need to be vaccinated*

*Workers of food and drink services that operate solely as takeaways are not required to be vaccinated.

I have a worker that will not get vaccinated

Many businesses are struggling with the legal implications of getting this step wrong.

Under the new laws, an employer of a regulated business can terminate an employee who fails to comply with their duty to get vaccinated. The employer must provide 4 weeks paid written notice.

Before giving a termination notice, the employer must ensure that all other reasonable alternatives that would not lead to termination have been exhausted.

We would recommend you approaching the issue like this:

1. Hold an informal meeting with the employee to discuss options.
2. Seriously look at your business structure and consider whether there are any appropriate redeployment options. Ask the employee for feedback.
3. As a temporary measure, redeploy the employee off premises if you can. Have them work from home if possible. If not, consider putting the employee on paid leave.

• Give the employee a “reasonable time” to get vaccinated. What a “reasonable time” is will depend on the nature of your business – what are you able to manage commercially and practically?
• Also, consider any shutdown periods you already have. Many businesses have a mandatory shut down period over Christmas. If you decided that a “reasonable time” was six weeks for the employee to consider being vaccinated or redeploying, but your business shuts down for two weeks over Christmas do not include those shut down weeks in the “reasonable time”. You may be opening yourself up to a personal grievance claim.

4. If the employee chooses to get vaccinated, they are entitled to paid time off to get the vaccine. If they get their first dose before 17 January 2021, they can be treated as fully vaccinated. They will need to get their second dose after that date to continue being classed as fully vaccinated.
5. If the employee decides not to get vaccinated, have a formal meeting after the “reasonable time” has elapsed. Encourage the employee to bring a support person. If you have redeployment options or ideas, present them and get some feedback. See if the employee has any ideas on how to deal with the issue.
6. If the employee consents, redeploy them elsewhere in the business.
7. If there are no redeployment options, and no other options, you can terminate the employment.

We would recommend contacting Wakefields Lawyers to aid you in this process. The above is high-level guidance and may not suit your business. It is difficult to generalize this advice as every business is different.

The Employment Relations Act still applies to all your actions and dealings with your employees in relation to COVID-19 decisions. You must act in good faith and consult with your employees at all stages of the decision-making process. Your employees will still have a right to raise a ‘personal grievance’, so you want to spend some time getting the process right to avoid unnecessary stress and legal fees later.

One of my workers only has one dose, can I still operate?

Yes, you can – but they will need to get their second dose before 17 January 2022.

Step Three: Customers

So, now we can address the crux of a business: how can you sell your goods and services to customers?

This stage is where the different traffic light settings really come into play. We have compiled the below tables for each business category that shows the rules under each light:

These rules are the law. They are not guidelines. Enforcers like the Police are likely to take and education-first approach, but there are significant fines for businesses and individuals who fail to comply. Individuals could be slapped with a fine up to $12,000.00 and given 6 months imprisonment. Businesses are liable for fines up to $15,000.00. The level of punishment will depend on the seriousness of the breach and whether it is repeat behavior.

Can I start to use the My Vaccine Pass rules if I hit capacity?

No, because you will likely have been in breach of the rules above. You cannot just switch rule sets based on reaching capacity.

Clear as mud?

Reach out to our team at Wakefields Lawyers on 04-970-3600 or email info@wakefieldslaw.com. We can help you navigate these new laws. We keep on top of them, so you don’t have too.

The next chapter will deal with businesses that aren’t regulated businesses like those above.