As many Texas businesses begin to reopen following the response to the coronavirus pandemic, at the same time, workers statewide are also either considering a return to work after an extended period of working remotely, or accepting new employment with a new company. Many of those returning workers are currently receiving unemployment benefits; some sources claim that more than 1.3 million Texas workers have filed for unemployment relief in the last five weeks.
Workers Are Returning to Work; Employers Have Special Responsibilities
However, last week, as Texas Governor Greg Abbott announced the first phase of his plan to reopen Texas commerce, various advocacy groups began to sound the alarm about the potential dilemma returning workers may face. In some cases, they may return to work and face potential health risks or pose a risk to others, while others may reject a job offer or recall notice and face the possibility of losing their unemployment benefits. The level of concern was such that the Texas Workforce Commission felt it necessary to announce that they were developing standards that would allow Texas workers to keep receiving unemployment payments if they refuse to return to work at a business reopened by Abbott’s order. Specifically, they will be allowed to refuse to return to work if they fear contracting or spreading COVID-19.
This is a departure from previous guidelines since the Texas Unemployment Compensation Act (TUCA) generally allows claimants to receive unemployment benefits if they can show they are out of work through no fault of their own. That said, the Act also disqualifies claimants from receiving benefits if they refuse an offer or referral of suitable work without good cause. In determining whether the work offered is suitable, the TWC considers several factors, including “the degree of risk involved to the individual’s health, safety, and morals at the (workplace). Such determinations are commo made by the TWC on a case-by-case basis.
What Do Employers Have to Consider?
On the last day of April 2020, Governor Abbott announced new TWC guidance regarding eligibility for unemployment benefits for claimants who choose not to return to work due to COVID-19. Under these guidelines,  those applying for unemployment benefits may refuse suitable work and continue to receive unemployment benefits if the refusal is based on one or more of the following reasons:
- Either the worker or a household member is at high risk. For example, the elderly are at a higher risk of serious illness from COVID-19.
- Workers or members of their households who have tested positive for COVID-19 by a source authorized by the State of Texas and have not recovered and 14 days have not yet passed.
- Workers who are currently in 14-day quarantine due to close contact exposure to COVID-19.
- Workers whose child’s school or daycare have closed and no alternatives are available.
The TWC has stated that any other situation involving a refusal of suitable work not specifically listed above will be reviewed by the Commission, again, on a case-by-case basis.
What a return May Look Like for Unemployment Benefits
While many media reports have focused on the new TWC guidance from the perspective of the worker’s right to refuse work and retain unemployment benefits, they have largely ignored the question of whether employers are required to keep positions open and reinstate workers when their unemployment runs out or when they are ready to return to work. The new TWC guidance does not require employers to provide job protection.
If furloughed workers refuse to return to work when recalled, employers in Texas may lawfully terminate those workers for job abandonment and fill those positions with other available workers, assuming they were not already on protected leave before or during the furlough. Also, if a candidate rejects a job offer without communicating the reason(s) for refusal, the employer may offer the position to the next candidate selected for the job.
In some circumstances, employers may have to provide paid sick or family leave, up to 80 hours each of sick leave or up to 10 weeks for family leave. They may also be required to reinstate workers if they have to deny an offer of work for reasons related to COVID-19. This can include children and elderly family members who are diagnosed with coronavirus. Based on individual circumstances, employers may have to provide job-protected leave or other workplace accommodations, such as continued remote work or schedule modifications, under applicable laws.
Given that many workers have expressed legitimate questions about returning to work during the pandemic, employers should consider explaining the circumstances surrounding an offer of new work or a return to work. Employers also have the same obligation to provide a safe work environment to all workers that they had previously, even as they comply with protocols recommended by the CDC, OSHA, and other governmental agencies for dealing with the COVID-19 pandemic. Texas employers should take special care when it comes to returning workers who may be entitled to paid or unpaid leave (including potentially job-protected leave) and other workplace accommodations related to COVID-19.