Waiter covid

8 September 2021

Delta Alert Level 2 and your Business

As of Wednesday, 8 September, we are at Delta Alert Level 2.  This means that even more businesses will be allowed to resume operations.  There will be more people out and about and no restrictions on who you can include in your household bubble.  However, Delta Alert Level 2 is not the same as the Alert Level 2 we have encountered previously.  There are some additional restrictions which we discuss below.  But what does this mean for your business?



You still have your usual obligations under the Health and Safety at Work Act 2015.  You must consider the usual risks to health and safety, as well the additional risks of exposure to and spread of COVID-19.  Additionally you need to comply with the Ministry of Health requirements and the requirements of your particular industry.


You should involve your employees in discussions about how they will take steps to minimise these risks.  This ensures that your employees understand what steps the employer is taking to reduce these risks and you have the added benefit of extra ideas and input.


Good hygiene practices and maintaining social distancing are paramount.  You will need to ensure that:


  • All workers keep at least 1m apart where possible;


  • Customers/clients and staff in customer-facing businesses are wearing masks – masks are mandatory in retail, public-facing, and close-contact businesses, e.g. supermarkets, shopping malls, indoor marketplaces, takeaway food stores, hairdressers, taxis/ride-share vehicles;


  • You have a robust cleaning regimen;


  • “High-touch points” such as EFTPOS machines, door handles and printers/photocopiers etc., are wiped down regularly;


  • Surfaces are disinfected between customers; and


  • You display QR codes and have alternative contact-tracing systems such as pen/paper registers for contact tracing. Remember that the collection of personal information is covered by the Privacy Act 2020 and you must keep this information safe.


Travelling over Alert Level Boundaries for Work


It is important to remember that Auckland is still in Alert Level 4 and only Alert Level 4 businesses/services are permitted to travel across the boundary for work purposes.  If you or your employees need to cross Alert Level boundaries for work, you need to ensure that:


  • The least number of workers needing to travel do so;


  • You minimise public health risks to anyone travelling as much as possible; and


  • The worker has appropriate evidence to travel, such as a Business Travel Document issued by MBIE, or a letter issued by you (the employer) stating the destination the worker is travelling to and that they are providing an Alert Level 4 business or service.


For more information about travelling over Alert Level Boundaries see: https://covid19.govt.nz/travel/permitted-travel-at-different-alert-levels/business-travel-permissions-over-an-alert-level-4-and-3-boundary/




Under Alert Level 2 businesses are able to resume their face-to-face operations with customers.  Businesses that engage with customers must have the following measures in place:


  • Good contact registers or contact tracing records;


  • If you run a customer-facing businesses, you must ensure customers can stay 2m apart;


  • If you run a café, restaurant or bar, where there is a cap on the number of people who may be present, then customers/clients are kept 1m apart;


  • Customers must remain seated unless they are entering/leaving the premises, using the bathroom, or paying for their meal/drinks; and


  • Restaurants, cafes and bars can have a maximum of 50 people seated inside their premises or 100 people seated within a defined outdoor space.




Employers must remember that normal employment law and obligations still apply in these circumstances.  That includes the duty of good faith and the duty to adhere to the terms of an employment agreement.  We appreciate that moving to a new level will involve additional considerations regarding employees.


What can I do if an employee refuses to come to work?


  • You should first discuss with your employee the reasons they refuse to come to work. If they are concerned about returning to work because of the possible risk of being exposed to or spreading COVID-19, you can discuss with them the steps that you are taking to reduce or minimise that risk and that may allay their concerns.  Remember that stress is a workplace risk that needs to be managed as well.


  • If, after discussing the employee’s concerns, it appears that there are no reasonable grounds for them to refuse to attend work then you will need to write to the employee and instruct them to return to work. If they continue to refuse to attend work, you may need to start a disciplinary process.  We strongly advise that if you are in this situation you seek legal advice.


What about high risk employees or employees who have high risk people in their households?


  • Firstly you should assess whether there is a need for that person to actually return to the workplace.


  • If they are needed at work, assess whether it is possible for them to work from home and if so, you should not require them to come to the workplace.


  • If working from home is not possible and the person refuses to come to work then you should enter discussions with them about taking paid or unpaid leave. If you are unsure about leave entitlements we suggest you seek legal advice.


What if I still cannot afford to pay my employees 100% of their salary/wages even if they return to work?


  • Employees should be paid as normal for each hour that they work. However, we understand that this just may not be possible yet for many businesses.


  • The COVID-19 Wage Subsidy provides payment for employee salary/wages for two-week periods. Depending on when you applied for the subsidy, this period may continue into Alert Level 2. During this time you must endeavour to pay employees at least 80% of their usual pay, or if this is not possible, the value of the subsidy.


  • If employees return to work and you are still unable to pay their full remuneration, you will need to discuss this with them. Consider negotiating for them to work reduced hours for a period, if you have not done so already.


  • Remember to record any agreements changing remuneration/hours/other working conditions in writing.


Can I undertake a restructure and make some staff redundant in order to save some money?


  • If you have received the Wage Subsidy, you will be in breach of your obligations under this scheme if you make any employees named in your subsidy application redundant during the 2-week period for the subsidy.


  • Once the 2-week period is finished, you will not be in breach of your subsidy scheme obligations if you make staff redundant.


  • We advise that you seek legal advice prior to commencing any restructure process. Even if the employee is still within the 2-week period we may still be able to assist.


We understand that there is a lot to think about as we move through the Alert Levels.  Saunders & Co Lawyers are available by phone and email to provide legal advice and guidance on a range of matters.  For more information and specific legal advice on your employment relations and health and safety obligations please contact us as below:


Andrew Riches (Partner)

Email: andrew.riches@saunders.co.nz

Mobile: 021 982 115


Claire McCool (Senior Associate)

Email: claire.mccool@saunders.co.nz

Mobile: 021 885 086


Deborah Hendry (Lawyer)

Email: deborah.hendry@saunders.co.nz

Mobile: 022 153 0220