Please note that this summary is for general information only and should not be considered legal advice. A complete recording of the webinar summarized below can be viewed here and at the bottom of this page.
1. How should employers approach furloughed or inactive employees about returning to work?
The Texas Workforce Commission (TWC) recommends that offers to return to work be made in writing, preferably in at least two formats (letter, text, email, etc.). The offer should include the basic information someone would need to evaluate a job offer like the rate of pay, duties, schedule, and location. The offer should also include information about how the employer will create a safe working environment, including by following the standards and guidelines from OSHA, the CDC, the President, and the Governor. The TWC also recommends explaining to the employee how his or her salary will be covered by a PPP loan, if applicable.
The TWC recommends documenting this exchange and keeping all correspondence related to offers to return to work.
2. What if an employee is concerned about returning to work due to COVID-19?
An employer cannot force an employee to return to work. Open communication will be key. The best thing an employer can do is to listen to the employee’s concerns, share the employer’s plans to keep employees safe, and work with the employee to find a solution that works for the business and the employee.
3. What if an employee still refuses to return to work and is on unemployment benefits?
Again, an employer cannot force an employee to return to work. However, if a someone is collecting unemployment benefits and refuses an offer of suitable work, then he/she can be disqualified for future unemployment benefits. As TWC explained, unemployment benefits are intended to help people who truly need them.
On April 30, 2020, Governor Abbott clarified that Texans can continue to receive unemployment benefits if they choose not to return to work due to the following reasons associated with COVID-19:
- 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.
The Governor further explained that other situations will be subject to a case-by-case review by TWC.
An employer who believes someone is collecting unemployment benefits and has wrongfully refused an offer of suitable work may file a complaint with TWC, who will investigate. Anyone filing a complaint should submit all relevant information and documentation to firstname.lastname@example.org.
4. What constitutes suitable work?
Suitable work is any work the person seeking unemployment benefits is qualified to do by virtue of their training or experience. Suitable work does not include work that is provably unsafe or that the person has never agreed to do previously. It also does not include work that would be illegal.
5. Are there ways for employers to bring back their employees gradually while ensuring the employee is made whole?
Yes. Employees can qualify for partial unemployment if their hours are reduced below a certain threshold. This allows the employee to receive a partial paycheck and unemployment benefits. TWC created this calculator to help employers and employees navigate partial unemployment.
Another option is the Shared Work Program, which allows an employer to reduce employees’ work hours from 10-40%. The employee then collects their paycheck and partial unemployment benefits to supplement lost wages. TWC must approve of shared work plans, and the approval process is currently taking between 10-30 days. For more information about the Shared Work Program, visit: https://www.twc.texas.gov/businesses/shared-work.
Importantly, as long as someone is eligible for some unemployment benefit, then they’ll also receive the extra $600 pandemic unemployment assistance, even if they are working some.
6. If an employee returns to work for a former employer, does the employer need to report the returning employee on the Texas New Hire Report?
Yes. The Attorney General uses this information for child support enforcement.
7. Will employers be protected from chargebacks during this pandemic?
Yes, TWC has confirmed that employers are protected from chargebacks for employees who are laid off or furloughed due to COVID-19. TWC further confirmed that the protection applies in cases of partial unemployment and when there’s a shared work plan, as long as the reduction in hours is due to COVID-19.
TWC did caution that there may be an error causing some COVID-19 related claims to be charged back against the employer, for example when there’s a shared work plan. TWC strongly encouraged all employers to protect themselves by checking every claim and filing a timely response if they believe anything is incorrect, including an incorrect chargeback. TWC explained that even if an error was made, they cannot fix a determination unless the employer filed a timely response and appeals. Employers lose their right to appeal if they do not file a timely response. 3
TWC also confirmed that chargeback protection shouldn’t change depending on whether a business reopens on May 1st, as long as the claim is due to COVID-19.
Finally, employers should not be charged back if an employee was fired due to misconduct.
8. What should employers do if they are having a hard time filing responses in time due to technological difficulties like the website crashing and the fax machines being overwhelmed?
TWC acknowledged that their communication systems are struggling to keep up with demand. They explained that they are doing the best they can to meet the demand, but they’ve received 2.5 years’ worth of claims in 30 days. They recommended submitting information in the mail, ideally with tracking information, as a way to ensure information is submitted on time. TWC also encouraged employers to email them at email@example.com when they have a hard time getting through.
Finally, TWC said if people really cannot get through, then they should document all of the attempts to protect their rights moving forward.
9. What if an employee refuses to comply with the pre-shift health screening employers are required to conduct, or any of the other health and safety standards that are being implemented due to COVID-19?
TWC recommends that employers adopt a policy outlining what the health and safety measures will be, and the disciplinary consequences that will occur if they are not followed. TWC recommends sharing the policy with all employees and obtaining a signed acknowledgement that they have reviewed and accepted the policy. Then, an employer should follow the policy in a non-discriminatory way. If an employee is fired for violating a policy after these steps are taken, then TWC agreed this would constitute a separation for cause and the employer would have chargeback protection.
10. What other advice did TWC share for restaurants?
TWC emphasized that decisions must be made for legitimate business reasons, and not to manipulate the unemployment system.
TWC also suggested that employers refer their employees to TWC’s labor hotline when they have questions: 1-800-832-2929.
11. Contact information and other resources
TWC Employer Hotline: 1-800-832-9494
TWC Employer Email Address: firstname.lastname@example.org
Additional information for employers: https://www.twc.texas.gov/news/efte/tocmain2.html
Calculators for employers: https://www.twc.texas.gov/news/efte/calculating_overtime_pay.html