Texas Return to Work Rules Create Confusion

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Attorney Harrison Oldham

Following last weeks’ announcement from Texas Governor Greg Abbott, that retail stores, restaurants, movie theaters and malls will be allowed to reopen means many Texas workers now have a difficult decision to make.

There are now multiple reports that some employers who have attempted to bring employees back to work are encountering some employees who do not want to return to work either due to COVId-19 fears or because they receive as much or more through unemployment benefits as they do through working.

This creates a difficult decision for both employers and employees.  Employees certainly have the right to feel safe at work, but on the other hand, employers following the recommended safety guidelines will expect their employees to return to work. In addition, according to the Texas Workforce Commission, one of the qualifications for unemployment benefits is that workers must be “willing and able to work all the days and hours required for the type of work you are seeking.”

To complicate matters, the Texas Workforce Commission (TWC) and Governor Abbott just announced new guidelines allowing workers to retain unemployment benefits if they refuse suitable work for various COVID-19 related reasons.

According to Governor Abbott, the TWC has promulgated rules allowing employees to continue receipt of benefits even if rejecting a return to suitable work. According to the Governor’s press release:

Each unemployment insurance claim 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.
  • 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.

Any other situation will be subject to a case by case review by TWC based on individual circumstances.

This rule change allows high risk or COVID-19 infected employees and employees without childcare due to COVID-19 to maintain unemployment benefits despite being offered and rejecting a return to work.

However, one question that has not been clarified relates to job protection.  The new TWC guidance does not address the questions of job protection and, per its plain written language, 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 be able to 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.

Because Texas is one of the first states in the country is issue this type of guidance, I would expect amendments and revisions in the coming weeks.

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About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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