Businesses raising legal concerns over rules

13 Sep 21

Column written by John Farrow and published in the Otago Daily Times on 13 September 2021.

A Dunedin law firm has started fielding calls from city businesses raising legal concerns about operating under the new Covid-19 Alert Level 2 rules.

Anderson Lloyd partner John Farrow said there had been various queries about the face-covering rule, especially where it was mandatory for workers.

He said questions were being raised about what to do if some workers in retail and indoor public facilities produced an exemption card.

“The exemption cards are being provided by the Disabled Persons Assembly [DPA], but what we are not clear on is any vetting process the DPA goes through before issuing them.”

Because the exemption card was simply an electronic image, it had probably become quite widely circulated, he said.

“The legal status of the exemption card is open to question, as the actual exemption from wearing face coverings in the Public Health Response Order applies where (among other things), ‘the person has a physical or mental illness or condition or disability that makes wearing a face covering unsuitable’.

“Our view is employers can require further proof that the exemption applies.”

Mr Farrow said another issue raised was if workplaces were not captured by the face-covering requirement but wanted to implement a policy requiring masks, it would have to be based on an assessment of the health risks.

“Employers should consult with their employees about that.

“Existing Health and Safety Regulations also require workers to wear PPE in accordance with reasonable instructions given to them.”

The new contact record rule required certain businesses and services to have systems and processes in place to ensure each person aged 12 and up who enters that workplace scans a QR code, or otherwise makes their own contact record or provides a contact record the person in control of the workplace collects.

“The Government has indicated that businesses will not be held liable if a customer refused to sign in, or would not be legally obliged to refuse entrance to that person, or to refuse to serve them.

“It applies to cafes, restaurants, bars, indoor event facilities, indoor public facilities, and close-proximity services, but does not apply to retail businesses and takeaways.

“It is possible that privacy concerns have made people hesitant to use the Covid tracer app and to manually sign in.”

He said businesses collecting manual records would need to comply with the Information Privacy Principles when collecting, storing, using and disclosing that information.

Manual sign-in options which did not publicly display names and contact information would better comply with privacy laws.

“Educating staff is going to be key by them knowing the systems and processes in place and how they are expected to apply them by asking customers to sign in.”

Later this week, Mr Farrow and James Cowan, also of Anderson Lloyd, will hold a webinar with the Institute of Directors to help educate its members on mandatory masking associated privacy implications, as well as the key changes to the wage subsidy declaration and entitlements.


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Link to ODT article here.

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