Q: I am concerned that my small shop might be ordered to close its doors to control the pandemic. Would I have to pay for unemployment benefits for my employees?

A: If a business shuts down due to a closure order from a governmental entity, Section 204.022(a)(1-2) (see https://statutes.capitol.texas.gov/Docs/LA/htm/LA.204.htm#204.022) of the Texas Labor Code may allow an employer to ask for chargeback protection. If that were to happen, you should include a copy of the shutdown order with your response to the unemployment claim and argue that the closure was mandated by a local or state order.

Q: Has TWC waived the one-week waiting period for UI Benefits?

A: Yes, Governor Abbott granted the Texas Workforce Commission’s request to suspend the one-week waiting period. Workers in Texas will be able to receive benefits immediately after their unemployment benefit applications are approved.

Q: Can TWC assist us if the pandemic forces a mass layoff?

A: Yes – TWC’s Rapid Response Unit can help employers and affected employees access unemployment claim and reemployment services in a very streamlined and efficient manner. For information, see the TWC website at https://twc.texas.gov/businesses/rapid-response.

Q: What other alternatives exist to avoid mass layoffs?

A: TWC administers the Shared Work Program, which allows partial unemployment benefits for similarly-situated employees whose hours are reduced by a standard amount between 10 and 40 percent – information about that program is https://twc.texas.gov/businesses/shared-work.

Q: What can an employer ask for if an employee tells us she is ready to return to work?

A: A question that might come up is whether it is permissible for an employer to require a doctor’s release / fitness for duty certificate or something similar if an employee is returning from an absence caused by something that looks or acts like Covid-19. It would be good to keep in mind that many employees may have financial problems relating to inability to pay to see a doctor, so employers should take that into account, and also that at least under current conditions, medical documentation should be requested only if a person is known to have been exposed to a communicable disease (not just coronavirus, but also things that are just as infectious, such as colds, flu, and other viral pests). Moreover, medical offices are almost overwhelmed, so issuing documentation will not be high on their priority lists, and tests for Covid-19 are not yet widely available. Finally, requests for medical documentation should be done consistently and fairly for all similarly-situated employees.

Q: Is an employer allowed to send an employee home if they are showing signs of illness, such as coughing, sneezing, or report that they have aches or chills?

A: Yes, in keeping with an employer’s general duty under OSHA to maintain a safe and healthy workplace for employees, employees who appear to be sick may be asked to go home, but do so as politely and discreetly as possible. However, the employer should be consistent and treat all employees who exhibit risky symptoms the same.

Q: What if we know that an employee has been exposed to Covid-19, but they are showing no symptoms?

A: Generally, there is no Texas or federal law that would prohibit a company from telling employees to stay home if they have had a higher-than-normal degree of exposure to individuals actually infected with the disease. As noted above, be consistent and do not base self-isolation orders on factors such as race or national origin. There have been scattered reports of ethnic discrimination, particularly against people who look like they might have come from Asia. The EEOC is already warning employers that singling employees out based on ethnic or national origin concerns could trigger a discrimination charge.

Q: Would the employer have to pay sick leave to that employee?

A: Yes, if the company offers such paid leave. Paid leave policies should be followed – failure to pay for leave owed under a written paid leave policy is a violation of the Texas Payday Law. A federal bill to require up to 80 hours of paid sick leave for full-time employees, H.R. 6201, has passed Congress and has been signed by the President as of March 18, 2020. The text of that bill is online at: https://www.congress.gov/bill/116th-congress/house-/6201/text/enr.

Q: Could they file unemployment claims and draw unemployment benefits if they are told to go home for medical reasons?

A: No, if they are receiving paid leave benefits. While on paid medical leave, they would not be considered “unemployed” under TWC laws and would not be able to claim unemployment insurance (UI) benefits. Once the paid leave runs out, they could file unemployment claims.

Q: What if they are not getting paid leave?

A: If they are on unpaid leave, they could be considered unemployed if they are out long enough to satisfy the test for either partial or total unemployment (for those definitions, see our book Especially for Texas Employers online at https://twc.texas.gov/news/efte/ui_law_eligibility_issues.html#defin_of_unemployment).

Q: Does an employee get unemployment benefits even if they are too sick to work?

A: Any claimant who is able to file a claim for UI benefits must meet the eligibility requirements in order to actually draw benefits. Most notably, the claimant must be medically able to work. The usual eligibility requirement to search for work has been waived by TWC for the immediate future as part of the pandemic relief effort.

Q: Is there any way an employer can avoid the cost of unemployment benefits?

A: An employer may be eligible for protection from chargebacks from UI benefits if the evidence shows that the work separation was for medical reasons. However, if the reason for the work separation was merely a cautionary period of time off to minimize potential exposure of others to someone who might be infected, but might not be, chargeback protection would most likely not be extended to the employer. To minimize the chance of unemployment claims being filed, the employer can encourage employees to work from home if the job is such that remote work is possible. Proper recording of work time is necessary, and the employer would need to work with the employees to set up a timekeeping system that functions well and takes all time worked into account.

Q: What other information is on the TWC website about workplace illness issues?

A: The following topics in our book Texas Guidebook for Employers may be useful:
https://twc.texas.gov/news/efte/medical_leave_laws.html and
https://twc.texas.gov/news/efte/fmla.html

Resources

• Governor Abbott Requests Emergency Designation for Small Business Disaster Loans
• Interim Guidance for Businesses and Employers
• 5 Ways to Retain Your Customers During the Coronavirus Outbreak
• Guidance on Preparing Workplaces for COVID-19
• Government Response to Coronavirus, COVID-19
• U.S. Chamber of Commerce: Combating the Coronavirus
• Coronavirus (COVID-19): Small Business Guidance & Loan Resources
• Shared Work

Return to Work Guidance from TWC (added 5.20.20)

Texas Workforce Commission (TWC) has issued guidance to unemployment claimants concerning their continued eligibility for unemployment benefits (UI) should they refuse rehire. Each UI benefits case 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 (Source DSHS website).
• Household member at high risk – People 65 years or older are at a higher risk of getting very sick from COVID-19 (source DSHS website).
• 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 the Texas Workforce Commission based on individual circumstances.

Employer Work Refusal Documentation (added 5.20.20)

Employee Refused Return-to-Work Offer? Let us know! If you offered any of your employees a chance to return to work and they refused, TWC needs to know. Please report each individual who refused to return to work on our online Employer Work Refusal Documentation form.

Unemployment Benefits Information

The Texas Workforce Commission (TWC) holds responsibility for the state unemployment compensation program, so all the information below is pulled from TWC’s website. However, Workforce Solutions for the Heart of Texas works closely with TWC and can act as your local navigator to resources.

Governor Abbott waived the one-week waiting period for benefits and work search requirements for Unemployment Insurance. Learn more about the Unemployment Insurance claim and appeal process here.

Mass Claims

The Mass Claims program streamlines the unemployment benefits claims process for employers faced with layoffs (permanent or temporary) of 10 or more employees at one time and takes some of the burden off the employees filing. For more general information about mass claims, click here (pdf).

To submit a Mass Claim request online, log on to Employer Benefits Services (EBS) and select Mass Claims Request. TWC waived the requirement that you must submit your Mass Claims Request at least five days prior to the planned layoff.

Note: If you already laid off staff, you must submit a Mass Claim manually–you cannot use the online EBS system to submit a Mass Claim. If your layoff date was in the past and you have 10 or more employees affected by the pandemic, you will need to fill out and submit Mass Claims documents manually:

• Complete the Mass Claims Spreadsheet and the Mass Claims Agreement Letter. The spreadsheet has an instructions tab to help you identify which fields are required and which are optional.
• Email the completed documents to TWC’s Mass Claims Coordinator at ui.massclaims@twc.state.tx.us. Note: You can leave the columns highlighted in blue blank.
• Make sure your email contains the following information:
  • Your company’s name, address, phone number, and TWC Tax Account Number
  • Contact person’s name (authorized representative with signature authority)
  • Contact’s email address, and phone number
  • The layoff date and how many employees were affected

If you need more information about Mass Claims:

• Go Online: Visit the TWC COVID-19 Employer Resources or Mass Claims for Unemployment Benefits
• Call: Call TWC directly at 1-866-274-1722.
• Unemployment Benefit Claims Help & Resources for Employers

If you need to hire employees, have additional questions or need help, contact our Business Solutions Team:

• Call: 254-296-5201
• Email: Solutions@hotworkforce.com

The Small Business Emergency Recovery Fund is awarding grants up to $5,000 to businesses in McLennan County employing fewer than 10 employees. This program is courtesy of the Waco City Council and McLennan County Commissioners and uses city, county and federal COVID-19 economic recovery funds. The first review of completed and submitted applications will be on May 8, 2020.

• Small Business Emergency Recovery Fund Eligibility Guidelines (PDF)
• Small Business Emergency Recovery Fund Program FAQs (PDF)
• Click here to view the Small Business Emergency Recovery Fund Program web page and to apply.

The United States Department of Labor’s Wage and Hour Division remain committed to ensuring labor and standards to protect and enhance the welfare of the nation’s workforce. To contact the Wage and Hour Division confidentially, call the toll-free help line at 1-866-4-USWAGE (1-866-487-9243). Questions can be emailed to WHD-COVID19@dol.gov.

• Click here for information regarding COVID-19 and Families First Coronavirus Response Act (FFCRA) 
• Access to the recorded FFCRA webinar training can be found at: Webinar: The Families First Coronavirus Response Act (FFCRA)
• Fair Labor Standards Act Digital Reference Guide (PDF)

Emergency Family and Medical Leave Expansion Act

In response to the Coronavirus outbreak, Congress passed HR 6201 to provide paid sick leave and free coronavirus testing, expand food assistance and unemployment benefits, and require employers to provide additional protections for health care workers. Division C addresses the expansion of and amendments to the Family Medical Leave Act (FMLA).

CLICK TO VIEW DIVISION C–EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT SECTION ON CONGRESS.GOV

Wage and Hour Division Guidance and Webinar (added 4.3.20)

The US Department Of Labor’s Wage and Hour Division (WHD) announced additional guidance following the paid sick leave and expanded family and medical leave implementation. Click here to read the full announcement.

WHD also produced a Families First Coronavirus Response Act Public Webinar. You will need to download Adobe Connect to view the webinar. Download Adobe Connect here and view the public webinar here. You can also click here to view WHD guidance.

If you need additional information, contact WHD:

• Email your questions to WHD-COVID19@dol.gov 
• Call toll-free at: 1-866-4-US-WAGE (1-866-487-9243)
• Visit WHD website at: https://www.dol.gov/agencies/whd

TWC Employer Resources

TWC’s Employer Resources web page lists helpful information about unemployment benefits, tax services, appeals, mass claims and shared work programs, child care and early learning information and more.

Small Business Administration Loans

The US Small Business Administration (SBA) is now offering disaster relief loans for small businesses in Texas. Go to the SBA website to apply. The process to apply, verify eligibility and close the loan can take several weeks to complete.

Other Helpful Links

• City of Waco COVID19 Updates
• COVID19 Information for Texas Hospitals
• Coronavirus Fact Sheet (Spanish version)
• CDC Communications (Print) Resources
• Texas Department of State Health Services
• Texas Department of Insurance
• Coronavirus Local Health Entities
• CDC Prepares Communities
• CDC Implementation of Mitigation Strategies for Communities
• National League of Cities Local Government Response Resources
• World Health Organization
• U.S. Department of Labor Employment Guidelines
• U.S. Department of Labor Occupational Safety and Health Administration