On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance identifying the circumstances in which an employee may remain eligible for the receipt of unemployment benefits despite the employee’s refusal of an offer to return to work. These circumstances included, for example, an individual being considered high risk due to his or her age (65 or older) or being diagnosed with COVID-19 and not having recovered. On May 15, 2020, the TWC published an Employee Work Refusal Documentation form on its website for employers to complete when an employee has refused an offer to return to work.
The form requires the inclusion of certain information, including: the method by which the job offer was communicated (verbal or written); the date the job offer was made; the position offered; and the reason for the employee’s refusal. While not required, the form also allows employers to identify the work schedule associated with the job offer and whether the wages, work hours, and working conditions were the same as before the furlough or temporary layoff.
Importantly, the TWC does not require employers to complete the Employee Work Refusal Documentation form but encourages the practice. The information contemplated by the form highlights the importance of Texas employers creating and adhering to a standardized process for employee recall, including the preparation of formal recall notices with written offers of employment and a means for recording employee work refusals.
In a recent interview, TWC Executive Director Ed Serna reiterated the importance of honesty by individuals receiving unemployment benefits, and noted that every two weeks, recipients are required to indicate whether they have been available for work, and if not, why not. Recipients’ answers as to why they have not been available for work will aid in the determination of whether they will continue to be eligible for unemployment benefits despite, for example, an offer of reemployment, Serna said. He cautioned that the TWC’s review could result in a recipient owing the TWC for overpayments because they “weren’t quite square with us.”
Serna pointed out that individuals should not refuse offers for part-time employment, as individuals will remain eligible to receive some—although adjusted—unemployment benefits, including the Coronavirus Aid, Relief, and Economic Security (CARES) Act’s $600 per week Federal Pandemic Unemployment Compensation (FPUC) benefit. “We will adjust your unemployment insurance benefit. It does not affect the $600. As long as you’re getting even $1 of unemployment insurance, you will [also] get the $600,” Serna said.
Additionally, Serna offered a reminder for employers that they can create a fraud report with the TWC if abuse is suspected. In particular, Serna said that the fact that an individual may be receiving more in unemployment benefits due to the FPUC benefit than the individual would earn if he or she returned to work is not a valid reason to refuse to return to work.
If you kept collecting unemployment insurance benefits when you had the opportunity to go back to work, technically that immediately becomes a fraudulent situation. It becomes something that we would pursue prosecution on if it becomes a really high-dollar amount or if we see that you turned down one job offer, then another job offer, and you’ve made up a story about why you can’t work.
Finally, Serna emphasized the importance of communication between employers and employees on furlough or temporary layoff. Serna noted that it may be that someone wants to return to work but requires some additional time to arrange for childcare or a few more days in quarantine. “Communicate with your employees, communicate with your employers and work through those issues” so companies can “get their good employees back” and individuals can “get back to their good jobs.”
Ogletree Deakins will continue to monitor and report on developments 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. Important information for employers is also available via the firm’s webinar programs.
