As everyone has no doubt noticed, many Texas businesses are scrambling to reopen following the extended response to the coronavirus (COVID-19) pandemic. That means workers all over Texas are considering either a return to their previous work or preparing for a new job after an extended period of working at home. Many returning workers are currently receiving unemployment benefits. According to some sources, as many as 1.3 million Texas workers have filed for unemployment benefits over the past month or so.
What if You Refuse to Return to Your Job?
Last week, Texas Governor Greg Abbott announced phase one of his plan to reopen the Texas economy. In response, several advocacy groups sounded the alarm regarding the dilemma that some returning workers potentially face. In some cases, their return to work means they may face greater than usual potential health risks or pose a risk to others. In many cases, Texas workers may decide to reject a job offer or recall notice because they face the potential loss of their unemployment benefits. It was those concerns that prompted the Texas Workforce Commission (TWC) to develop standards to allow many Texas workers to continue to receive unemployment benefits, even if they refuse to return to work at a business reopened by Governor Abbott’s order. For example, many workers will be allowed to refuse to return to work if they fear contracting or spreading COVID-19.
This is a significant change in the state’s traditional position. Before now, 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, but it also disqualifies workers from receiving benefits if they refuse an offer or referral of suitable work without good cause. To gauge whether the work being offered is “suitable” under the law, the TWC takes several factors into account, including “the degree of risk involved to the individual’s health, safety, and morals at the (workplace). Determinations of “suitability” are assessed on a case-by-case basis.
Under eligibility guidelines announced by Governor Abbott on April 30, 2020, the new TWC guidance regarding unemployment benefits for claimants who choose not to return to work due to COVID-19 may still continue to receive unemployment benefits if the refusal is based on one or more of the following reasons:
- Either the worker or another member of their household is at high risk to contract coronavirus. Currently, it is known that the elderly face a higher risk of serious illness from COVID-19 as a matter of course.
- Workers or members of their households have tested positive for coronavirus by a testing 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 someone with COVID-19.
- Workers whose child’s school or daycare have closed and no alternatives are available.
These are very specific reasons for allowing a refusal to work, but TWC has stated that any other situation regarding a refusal of suitable work not specifically listed above will be subject to review and assessment by the Commission; again, on a case-by-case basis.
The Employer’s Side of the Equation
Clearly, many media reports regarding the new TWC guidance have stressed the perspective of the worker’s right to refuse work and still receive unemployment benefits. However, media accounts have tended to ignore another interesting and important question; whether or not employers are required to keep positions open and reinstate workers when their unemployment runs out, or when they are simply ready to return to work.
In fact, the new TWC guidance does not impose a requirement on employers to provide job security and protection. If a furloughed worker is recalled by his employer and refuses to return, Texas employers may lawfully terminate those workers for job abandonment and fill those positions with other available talent. This, of course, assumes the employee was not already on protected leave prior to 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.
That said, under some circumstances, employers may be required to provide up to 80 hours of paid 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 noted above, which are related to COVID-19.
The fact of the matter is, many workers in San Antonio, Bexar County, and throughout Texas have asked many important questions regarding their return to work during the pandemic. For that reason, employers should explain to their employees the circumstances surrounding an offer of new work or a return to work.
In All Cases, Workers Must Be Able to Work Safely
In addition to considering the question of unemployment insurance and job protection, it is also the case that employers must provide a safe work environment to each and every employee. This is especially true now, as the pandemic continues on and employers are under increased scrutiny, due to requirements to comply with protocols recommended by a number of state and federal agencies for fighting the spread of coronavirus, such as the CDC and OSHA, as well as state health authorities. Texas employers should take extra care when it comes to returning workers. They should know which of them may be entitled to paid or unpaid leave, including possible job-protected leave, but they should also make a number of other workplace accommodations related to COVID-19.