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COVID-19 EMPLOYER UPDATE

UPDATED June 5, 2020

As Texas has slowly reopened over the course of the last month, one of the greatest challenges facing employers is getting employees back to work. Many Texas workers have found that they are making more on unemployment benefits than they made while working. In particular, the extra $600 per-week benefit introduced by the CARES Act has, without question, disincentivized employees from returning to work when called back in. Other workers are simply reluctant to return to work due to fear of contracting COVID-19 in the workplace. Most businesses need employees to operate, so the question then becomes, how do we compel employees to come back to work?

Create a Safe Work Environment

If you are having trouble getting employees to come back, your first step should be to find out why they are hesitating to return. If health and safety is the primary concern, reassuring your employees of the steps you are taking can go a long way. Letting employees know that you have consulted and are following CDC and OSHA guidelines, along with any specific steps you are taking to reduce the transmission of COVID-19 at your workplace, is a great way to start.

If an employee informs you that the or she is in a vulnerable category, you should engage in the interactive process and discuss other possible reasonable accommodations that will better protect this specific employee.

Ultimately, unless the employee is in a vulnerable class, simply being fearful of returning to work during the COVID-19 pandemic is not enough to entitle an employee to remain at home, for purposes of unemployment and federal leave laws, or otherwise.

Advise Employees of Potential Consequences of Refusal to Return to Work

If an employee refuses to return to work because they are making more on unemployment, the Texas Workforce Commission has advised that such refusal constitutes unemployment fraud and encourages employers to report any such job refusal. Employers may send the information to twc.fraud@twc.state.tx.us or call 1-800-252-3642.

Before employers report the job refusal/fraud, they should counsel the employee or former employee (depending on whether the employee was furloughed or temporarily laid off) and give them a final chance to return to work. Employers should explain that, the employee will likely lose unemployment benefits once the job refusal is reported to the TWC and may be responsible to pay back the benefits obtained because of the fraud—it is also possible a finding of fraud could make the employee ineligible to receive any future unemployment benefits or worse, could result in criminal prosecution. In any event, the employee’s continued refusal will likely result in the employee being out of a job AND be ineligible to receive UI benefits.

Note that the TWC has stated that,

Each UI benefits case is currently evaluated on an individual basis. However, because of the COVID-19 emergency, the following are reasons benefits would be granted if the individual refused suitable work.

Reason for refusal:

• At High Risk – People 65 years or older are at a higher risk for getting very sick from COVID-19 (Source: DSHS website).
• Household member at high risk – People 65 years or older are at a higher risk of getting very sick from COVID-19 (Source: DSHS website).
• 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 (On June 3, 2020, Governor Abbott announced Phase III to Open Texas and child-care services and youth camps may now be open at full capacity. However, some childcare centers or youth camps are electing to stay closed or operate at a lower occupancy rate, based on demand).

Any other situation will be subject to a case by case review by the Texas Workforce Commission based on individual circumstances.

TWC FAQs About Unemployment Insurance Benefits Related to COVID-19 (emphasis added). In other words, if the employee refuses to come back to work, but one of those circumstances is present, they can refuse to return to work and still keep their unemployment benefits.

There are undoubtedly individuals that are taking advantage of the situation, but there are also individuals with legitimate health concerns or familial situations that make returning to work a true burden. Because of this, communication between the employer and current or former employees is crucial. Employers must balance their need for labor with the health and safety concerns of their employees.

These materials are made available by Stibbs & Co., P.C. for informational purposes only, do not constitute legal or tax advice, and are not a substitute for legal advice from qualified counsel. The laws of other states and nations may be entirely different from what is described. Your use of these materials does not create an attorney-client relationship between you and Stibbs & Co., P.C. The facts and results of each case will vary, and no particular result can be guaranteed. The facts and results of each case will vary, and no particular result can be guaranteed. Employers should consult their tax advisors concerning the application of tax laws to their particular situation.

Employers are also encouraged to seek legal counsel prior to taking actions to avoid violations of federal or state employment laws including, but not limited to, the Family Medical Leave Act and its expansion under the Families First Coronavirus Response Act, the Fair Labor Standards Act, the Texas Payday Law, Texas small employer health insurance laws, new hire reporting laws, the Texas Commission on Human Rights Act, various EEO laws covered by Title VII of the Civil Rights Act of 1964, Occupational Safety and Health Administration laws, the Immigration Reform and Control Act, EEO-1 reporting requirements, the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the National Labor Relations Act, the Worker Adjustment Retaining Notification Act, and the Employee Retirement Income Security Act of 1974.