Hunton Employment & Labor Perspectives

As Texas begins to reopen, some employers are recalling employees placed on furloughs or leaves of absences due to the COVID-19 pandemic. As we previously reported, the Department of Labor recently issued guidance to clarify that an individual who is able and available to work, but refuses to take a job offer or return from a furlough, absent one of the COVID-19-related criteria, will not be eligible for the federal Pandemic Unemployment Assistance benefit under the CARES Act. On April 30, 2020, the Texas Workforce Commission (TWC) issued guidance stating that, depending upon the reason for refusal, these employees may remain eligible for receipt of state unemployment benefits.

TWC indicated that it will evaluate each unemployment benefits case on an individual basis. The guidance lists the following reasons benefits would be granted if the individual refused suitable work:

• 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.
• 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.

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

Employers should keep in mind that, generally, workers who are still employed and refuse to return to work without good reason are not entitled to job protection. Nevertheless, it would be prudent to consider whether leave entitlement under the Family and Medical Leave Act, the Americans with Disabilities Act, and/or the Families First Coronavirus Response Act is triggered before making personnel decisions based upon an employee’s refusal to return to work.