Re: COVID-19 access restrictions, vaccination-status requirements, mask enforcement, and access to essential groceries

FORMAL NOTICE – REQUEST FOR VERIFICATION AND RECORDS

Countdown / Woolworths New Zealand
Quay Street, Auckland CBD

Re: COVID-19 access restrictions, vaccination-status requirements, mask enforcement, and access to essential groceries

 

 

ATTN: Chief Executive / Legal & Compliance / Health & Safety / Privacy Officer — Formal Notice: Countdown Quay Street Auckland

This notice concerns the operation of the Countdown supermarket at Quay Street, Auckland CBD during the COVID-19 response period.

Information has been received that customers attending this supermarket were, at certain times, required to establish or disclose their COVID-19 vaccination status before being permitted to enter or purchase groceries.

This is a serious matter because supermarkets supplied essential food and household necessities, including to elderly, sick, disabled and otherwise vulnerable people.

The issue requiring clarification is not whether COVID-19 policies existed generally. The issue is:

What precise legal authority permitted Countdown Quay Street to require a supermarket customer to prove vaccination status as a condition of accessing or purchasing essential groceries?

1. Verification required

Woolworths New Zealand is requested to identify and produce:

The exact policy applying at Countdown Quay Street concerning customer vaccination status.

The date that policy commenced and the date it ended.

Every version of the policy.

The identity and position of the person or persons who authorised it.

The precise enactment, COVID-19 Public Health Response Order, regulation, direction or other legal authority relied upon.

Any Ministry of Health, MBIE, WorkSafe, Police or other government advice relied upon.

Any legal advice or legal interpretation relied upon in deciding that customers could be required to prove vaccination status.

Any instruction given to Quay Street staff, security personnel or contractors concerning:

 

vaccine passes;

vaccination evidence;

refusal of entry;

refusal of service;

mask requirements;

mask exemptions;

social distancing;

trespass or removal of customers.

2. Supermarkets as essential-access premises

During the COVID Protection Framework, supermarkets were treated differently from many other venues because they supplied essential goods.

Accordingly, Woolworths is specifically asked to identify whether it considered the statutory provisions concerning access to designated premises and restrictions on denying access on vaccination grounds.

If Countdown Quay Street nevertheless required customers to establish vaccination status, please identify:

the statutory provision relied upon;

why that provision was considered to override or permit departure from the protections applying to supermarket access;

who made that interpretation;

whether that interpretation was reviewed by legal counsel or a government agency.

3. Sick, elderly and disabled customers

Please produce the policy dealing with customers who:

were medically unable to wear a mask;

had a recognised mask exemption;

suffered from a disability or health condition;

were elderly or medically vulnerable;

were unable to use online grocery services;

required physical access to the supermarket to obtain food.

Please identify what steps were taken to prevent discrimination, humiliation, intimidation or exclusion of such customers.

4. Health and Safety at Work Act

If Countdown relied upon workplace health and safety obligations, please produce:

the relevant risk assessments;

hazard registers;

COVID-specific risk assessments;

assessments concerning interaction between staff or security personnel and customers;

assessments of the risk of confrontation, distress, violence or injury arising from enforcement;

instructions given to staff and security personnel about physical intervention.

The fact that a business seeks to control one risk does not eliminate the need to consider risks created by the enforcement method itself.

5. Assaults, confrontations and security incidents

Please identify and preserve all records relating to customer incidents at Countdown Quay Street arising from COVID-19 restrictions, including:

complaints;

assaults or alleged assaults;

security interventions;

removals from the premises;

trespass notices;

Police attendance;

incident reports;

staff reports;

CCTV records where retained;

reports to head office;

reports to WorkSafe.

6. Mask exemptions

Please produce the policy and staff instructions concerning people who could not safely or reasonably wear masks.

Please identify whether staff or security personnel were instructed:

to recognise lawful exemptions;

to demand medical evidence;

to question customers concerning private medical information;

to refuse entry despite an exemption;

to provide an alternative means of accessing essential groceries.

7. Vaccination information and privacy

If customers were required to display, disclose or prove vaccination status, please identify:

what information was collected;

whether it was recorded;

whether it was retained;

who had access to it;

the purpose for which it was collected;

the lawful authority relied upon;

the privacy notice supplied to customers;

any third party to whom that information was disclosed.

8. Distinction between workers and customers

Please clearly distinguish between:

vaccination requirements applying to employees or contractors; and

vaccination requirements allegedly applied to ordinary supermarket customers.

Any legal or health-and-safety basis applying to workers should not be presented as authority for excluding customers unless there was a separate lawful basis for doing so.

9. Core verification question

The central question remains:

By whose authority, under precisely what provision of law, and upon what verified evidence could Countdown Quay Street require a customer to prove COVID-19 vaccination status before that person was permitted to obtain essential groceries?

A general reference to “government rules”, “COVID requirements”, “health and safety”, “head office policy” or “the mandate” is not sufficient.

The exact authority and contemporaneous records are required.

10. Preservation of records

Woolworths New Zealand is requested to preserve all relevant records, including:

emails;

internal memoranda;

policy documents;

legal advice;

government communications;

staff instructions;

security instructions;

incident logs;

complaint records;

CCTV retention records;

risk assessments;

training material;

communications concerning Quay Street specifically.

This request is made so that the factual and legal basis for the treatment of customers during this period can be properly examined.

Tracy
WE REVIEW THE CROWN
NOT A LAWYER