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As Texas begins to reopen, some employers are recalling employees placed on temporary leaves of absence or furloughs due to the COVID-19 pandemic. Invariably, a number of employees will ignore recall attempts or refuse offers to return to work. Depending upon the reason for refusal, these employees may remain eligible for the receipt of unemployment benefits, according to guidance issued by the Texas Workforce Commission (TWC) on April 30, 2020.

Refusals to Return to Work

While, as a general matter, claim determinations are “currently evaluated on an individual basis,” the TWC stated in its recently issued guidance that “because of the COVID-19 emergency, the following are reasons benefits would be granted if the individual refused suitable work”:

  • The claimant is considered high risk due to his or her age. “People 65 years or older are at a higher risk for getting very sick from COVID-19 (Source [Texas Department of State Health Services] DSHS website).”
  • A member of the claimant’s household is considered to be high risk due to his or her age (65 years or older).
  • The claimant was diagnosed with COVID-19, meaning that the claimant “tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered.”
  • The claimant’s family member was diagnosed with COVID-19, meaning “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.”
  • The claimant “is currently in 14-day quarantine due to close contact exposure to COVID-19.”
  • The claimant cannot work because his or her “child’s school or daycare closed and no alternatives are available.”

Outside of the circumstances described above, “[a]ny other situation will be subject to a case by case review by the [TWC] based on individual circumstances.”

Commentary From the TWC’s Executive Director

In a news interview on April 29, 2020, TWC Executive Director Ed Serna stated:

“We’re not going to just cut somebody off because they didn’t go back to work. We’re going to evaluate each of those situations on a case-by-case basis.

It doesn’t make sense to us in this very unique time to not have unique actions to address someone being concerned about going back to work or not being able to go back to work. They could actually be quarantined. They could be caring for an individual who has been diagnosed with COVID-19 or they could be caring for children and the day care is not open. So, there are a lot of valid reasons where we would not automatically end benefits.”

Serna encouraged claimants to be truthful in making the required biweekly reports. Failing to report income, for example, could result in a claimant being required to repay some of the unemployment benefits received. In contrast, if a claimant refused to return to work, the claimant would not be required to repay unemployment benefits even if the TWC later determined that the claimant should have returned to work. Serna also made clear that the TWC would not disqualify claimants who fell into any of the high health risk categories identified by the DSHS.

Finally, regarding employees who refuse to return to work simply due to fear of COVID-19, Serna acknowledged that employers have been provided with ample guidance on health and safety standards to implement for their workplaces, including guidelines from the DSHS. If employers are following the guidelines, and the claimants are otherwise healthy individuals without “reason for refusal” under the TWC guidance, the claimants can report back to work. Alternatively, should there be safety concerns related to the environments in which claimants will be working, claimants may continue to be eligible for unemployment benefits. Again, the TWC will evaluate situations on a case-by-case basis.

Takeaways for Employers

As a general matter, workers who are still employed and refuse to return to work are not entitled to job protection. Yet, due to COVID-19, some employees may qualify for some form of leave under the Family and Medical Leave Act, the Americans with Disabilities Act, or the Families First Coronavirus Response Act. Thus, employers may want to consider whether any of these laws are implicated before making personnel decisions based upon an employee’s refusal to return to work.

Ogletree Deakins will continue to monitor and report on development with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Critical information for employers is also available via the firm’s webinar programs.

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