COVID-19 Questions - Business

Disclaimer: This content has been prepared by third party lawyers, not by ARAG nor by the Insurer. It is intended to provide a general guide to the subject matter and is not intended to constitute legal advice, and you should not rely on this information as a substitute for obtaining your own legal advice. If any of the below issues apply to you, then you should obtain legal advice about your specific circumstances. ARAG and the Insurer disclaim any liability for damages howsoever arising out of or in connection with the use and/or reference to any of this content.

Published on 01.07.2020.

Can I postpone paying the rent for my commercial property because of the COVID-19 crisis?

Even if you are unable to use your commercial property during the crisis, you must continue to pay rent under your lease if you are unable to negotiate a postponement. Depending on the specific wording of your lease, however, you may be entitled to some concession.

I asked my employees not to show up for work before the Government loosens the isolation advice. Do I have to continue to pay their wages?

This depends if your business is following industry government recommendations. If you ask your employees to remain away from the workplace and not pay their wages, without the support of government recommendations, you could face unfair dismissal claims.

Due to COVID-19 I had to close my gym. Some of my members now refuse to pay their monthly subscription fees because they can’t exercise. I believe that members should simply pay. Who is right?

Australian Consumer Law prohibits you from taking regular payments from your members in these circumstances because there are reasonable grounds to believe that your service will not be supplied. Per ACCC recommendations, you should also ensure that you do not charge your members ‘freeze’ fees.

Are we obliged to continue to pay the wages of our employees, if we temporarily close our company?

You may not be required to continue paying your employees during a temporary closure in the following circumstances:

An enforceable government directive has closed your business;
A large proportion of your workforce is in self-quarantine; or
Your business activity has stopped due to supply issues.

In other words, you are not obliged to pay your employees’ wages if the closure was beyond your control.

I urgently need all my employees during COVID-19 crisis. Can I withdraw employee’s leave?

If an employee’s leave has been pre-approved, it is unlikely that you can cancel or refuse it. This is because leave is a workplace right that all employees are entitled to.

You can ask your employees if they are able to postpone their leave. However, you must ensure that you do not penalise your employees if they are not willing to postpone or cancel their leave.

As an employer, am I obliged to pay wages if an employee refuses to appear at work for fear of COVID-19?

During this global health crisis, an employee’s refusal to appear at work may be reasonable if they have genuine WH&S concerns. You should try and understand your employee’s perspective through proactive communication and attempt to find alternative working arrangements that suit you both. You may also permit them to take annual leave or leave without pay. However, you do not necessarily have to pay your employee if their refusal does not align with government directives.

Am I obliged to pay wages if my employee is sick at home due to infection with the COVID-19?

Your employee can access their paid sick leave during this period. You should also consider your obligations under your applicable enterprise agreement, your employee’s contract or any relevant awards.

My employee is not ill but has officially been quarantined. Do I have to continue to pay the wages?

Because this situation is out of your control, and per government instruction, you are not legally required to pay their wages and you may stand them down. You may, however, permit them to work from home if you choose to do so.

Should I exclude at-risk employees from the workplace?

You should ensure that these employees are kept the recommended distance away from others in the workplace. You may wish to discuss the viability of these employees working from home to minimise their exposure to public places and transport.

Can I force an employee to present a medical clearance certificate?

There is no requirement for an employee to present a medical clearance certificate if they have no symptoms of COVID-19 and there is no genuine indication for its need. Without any symptoms, there is no test to determine whether they will become unwell or not.

Can I tell my employees that one of their coworkers has tested positive to COVID-19?

You can. However, you must ensure that only reasonably necessary personal information is revealed. In some situations, you should not reveal the employee’s name to all people in the workplace. To determine whether disclosure is required, you should seek direct advice from the Department of Health.

How can I keep my workplace safe during these times?

You must ensure that you are doing everything within reason to eliminate the risk of your employees contracting COVID-19. This involves making sure your workplace is well equipped with soap, water and toilet paper to encourage proper hygiene.

The insurer of ARAG Legal Expense Insurance products is HDI Global Specialty SE – Australia (ABN 58 129 395 544, AFS License number 458776) (Insurer). ARAG Services Australia Pty Ltd (ABN 14 627 823 198, AFS Licence number 513547) (ARAG) has been granted delegated authority by the Insurer to enter into, vary or cancel policies and handle claims for ARAG Legal Expense Insurance products on the Insurer’s behalf.
All enquiries should be addressed to ARAG.

Any advice contained on this website is general advice only and has been prepared without considering your individual objectives, financial situation or needs. Before purchasing or renewing a product we recommend that you consider if it is suitable for your circumstances and read the policy terms and conditions.

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