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Volume X, Number 226

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Texas Workers Who Refuse to Return to Work May Remain Eligible for Unemployment Benefits

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.

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume X, Number 142


About this Author

Jayde Ashford Brown, Andrews Kurth, management side labor litigation lawyer, employment matters attorney

Jayde Ashford Brown represents corporate clients in management-side labor and employment matters arising under federal and state law, including, but not limited to Title VII, the FLSA, the FMLA, the ADA, the ADEA, and workers compensation under Section 451 of the Texas Labor Code. In addition to litigation, Jayde counsels clients on best practices relating to hiring and termination decisions, employment policies and employee investigations, and the OFCCP and related AAP obligations for federal contractors and subcontractors. Jayde also prepares and negotiates separation...

Holly H. Williamson Partner Houston  Energy Retail and Consumer Products

Holly represents management in labor and employment law litigation, contract negotiations, drug testing and arbitrations.

Holly represents clients before administrative agencies, such as the Department of Labor,  the Department of Justice, the EEOC, the Texas Commissions on Human Rights and the Texas Workforce Commission.

She serves as primary regional employment counsel to companies in the oil and gas exploration and production, oil and gas tools and service, restaurant, retail, financial, chemical, health care, drug testing and administration, transportation, and telecommunications industries. She conducts training for clients and advises on all aspects of employment issues. Holly handles complex litigation and appeals involving trade secrets, unfair competition,  discrimination, harassment, and retaliation claims, employee benefit claims under ERISA, employment torts, defamation, drug testing, privacy, and class and collective action wage and hour claims.

Robert T. Dumbacher Labor & Employment Attorney Hunton Andrews Kurth Atlanta, GA

Bob’s practice focuses on representing and advising employers in complex labor relations and employment planning and disputes, including trade secrets/non-compete disputes and wage and hour issues.

Bob has obtained numerous positive results in litigated matters, including large-scale labor relations matters and restrictive covenants disputes, one of which was the groundbreaking relief under Georgia’s recently-passed Restrictive Covenants Act. Bob believes it is important for employers to proactively think about how to avoid or mitigate the risks of litigation and works closely with...