By Dianne Friedl and Steve Shardonofsky

Seyfarth Synopsis: The Texas Workforce Commission (TWC) just announced new guidelines allowing workers to retain unemployment benefits if they refuse suitable work for various COVID-19 related reasons. But the new rules do not require employers to keep those jobs open or reinstate workers when unemployment benefits run out. Under other federal or state laws, depending on the circumstances, Texans who choose to return to work may be entitled to paid sick or family leave (including job-protected leave) and other workplace benefits/accommodations for COVID-19 reasons, without having to risk their jobs. Given these and other protections, employers should proceed with caution before terminating for job abandonment workers who refuse to return.  At a minimum, given workers’ understandable fears about the pandemic, employers should consider explaining in their offer letters how they intend to comply with the various safety protocols recommended by the CDC, OSHA, and other governmental agencies.

Texas Businesses Reopen While Workers Face Difficult Choices
About Whether to Return

As many Texas businesses begin to reopen, employees throughout the state are also considering returning to work after temporary furloughs, heading back to the office after working remotely, or accepting new offers of employment. Many of those workers are currently receiving unemployment benefits. According to the Texas Tribune, more than 1.3 million people in Texas alone have filed for unemployment relief in the last five weeks. But as Governor Abbott announced the first phase of the plan to reopen Texas last week (see summary here), various advocacy groups began to sound the alarm about the existential dilemma workers may face: return to work and face possible exposure (or risk exposing others), or reject the job offer/recall notice and risk losing their unemployment benefits. Numerous media outlets picked up the story, prompting a spokesman from the TWC to announce on April 28 that the TWC was “developing parameters that might allow Texans to continue qualifying for unemployment insurance if they refuse to return to work at a business reopened by Governor Abbott because they fear contracting or spreading the coronavirus.”

The TWC Provides New Guidance Allowing Claimants to Refuse Work and Retain Unemployment Benefits

Generally, the Texas Unemployment Compensation Act (TUCA) allows claimants to draw unemployment benefits if they can show they are out of work through no fault of their own. See Tex. Labor Code § 207.001. But the Act disqualifies claimants who refuse a referral to or an offer of suitable work without good cause. See § 207.047. In considering whether work is suitable, the Commission considers several factors, including “the degree of risk involved to the individual’s health, safety, and morals at the place of performance of the work.” See Tex. Labor Code § 207.008(a). Those determinations are generally made by the TWC on an individual, case by case basis.

On April 30, 2020, Governor Abbott announced new guidance issued by the TWC concerning eligibility for unemployment benefits for claimants who choose not to return to work due to COVID-19. Under the TWC’s new guidance, unemployment claimants may refuse suitable work and continue to receive unemployment benefits if the refusal is based on one or more of the following reasons:

  • At High Risk: People 65 years or older are at a higher risk for getting very sick from COVID-19.
  • Household member at high risk: People 65 years or older are at a higher risk of getting very sick from COVID-19.
  • Diagnosed with COVID: The individual has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered.
  • Family member with COVID: Anybody in the household has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered and 14 days have not yet passed.
  • Quarantined: Individual is currently in 14-day quarantine due to close contact exposure to COVID-19.
  • Child care: Child’s school or daycare closed and no alternatives are available.

According to the TWC, any other situation involving a refusal of suitable work not specifically listed above will be reviewed by the Commission “based on individual circumstances.”

The New TWC Rules do not Provide Job Protection; But Employees Who do Return to Work May Still Qualify for Paid and Job-Protected Leave

Print and television news coverage of the TWC’s new guidance has focused almost exclusively on the right to refuse work and retain unemployment benefits. Most of those reports have not addressed an equally important question: whether employers must keep those positions open or reinstate workers whenever their unemployment benefits run out or when they are ready/able to return to work. The new TWC guidance does not address these questions and does not require employers to provide job protection.

If furloughed workers refuse to return to work when recalled without communicating the reason(s) for refusal, and assuming they were not already on protected leave before or during the furlough, employers in Texas may lawfully terminate those workers for job abandonment and fill those positions with other available talent. The same is true for new job offers: 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, however, employers may be required to provide paid sick or paid family leave, and may be required to reinstate workers if they are absent or need to stay away from work for COVID-19-related reasons (including workers with childcare responsibilities as a result of school closures during the pandemic).  In fact, many of the qualifying reasons for paid sick leave (up to 80 hours) and paid extended family leave (up to 10 weeks) under the new Families First Coronavirus Response Act (see here) overlap substantially with the new TWC guidance. Under the FFCRA, workers are eligible for paid sick leave starting on their first day, and may qualify for paid extended family leave after working for at least 30 days. Depending on the circumstances, employers may also be required to provided job-protected leave or other workplace accommodations (for example, continued remote work or modifications to the workplace/schedules/work duties) under other laws, including the Americans with Disabilities Act and the Family and Medical Leave Act. Employees may also be entitled to paid sick, medical, and/or family pursuant to workplace policies.  In other words, workers who choose to return to work after a full or partial furlough, or who choose to accept new job offers, may benefit from paid sick/family leave, without having to risk their jobs.

Even then, however, many workers may be fearful of returning to work without assurances that their employers have implemented adequate health and safety  protocols, and that they will follow the recommended guidance from the CDC, OSHA, and other federal/state agencies to limit exposure and prevent the spread of COVID-19. Under existing OSHA rules, workers can refuse to work if they have a reasonable belief that they face a threat of death or serious physical harm is likely to occur.  Importantly, however, a general fear of becoming infected in the workplace is not enough to trigger protection under OSHA. For a fuller explanation of this issue, see our previous blog here.

Takeaways for Employers

Given that many workers have legitimate questions about returning to work during the pandemic, employers should consider explaining in their job offers and other return-to-work communications how they intend to provide a safe work environment and comply with protocols recommended by the CDC, OSHA, and other governmental agencies. Texas employers should also be on the lookout for returning workers who request and may be entitled to paid or unpaid leave (including potentially job-protected leave) and other workplace accommodations related to COVID-19.