As some Texas business begin to reopen, questions remain about the rights of employees amid the coronavirus. Some employees may be concerned that their companies are opening too soon or have general questions about their health and safety at work.

For insight into some of the issues facing employees and their options on the job, the Defender turned to attorney David L. Barron, a member of Cozen O’Connor who is Board Certified in Labor and Employment Law by the state of Texas.

REFUSING TO RETURN

Barron was asked if an employee can be legally terminated for refusing to return to work.

“It depends on the reason, and there are two main concerns,” he said. “One is being terminated and the other concern would be losing unemployment.”

Barron said the Texas Workforce Commission has issued guidelines which allow an employee to refuse an offer of reinstatement under certain circumstances.

According to TWC, each UI [unemployment insurance] 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: Texas Department of State Health Services, DSHS)
  • Household member at high risk – People 65 years or older are at a higher risk of getting very sick from COVID-19 (Source: DSHS).
  • 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 TWC based on individual circumstances.

“These reasons largely track the various legal protections from termination,” Barron said. “For example, it could be unlawful discrimination to terminate an older or disabled employee who had concerns that returning to work would pose a risk of harm.

DEALING WITH HIGH RISK

Barron expounded on the options available if an employee is at risk for the coronavirus.

“The CDC has continued to recommend that vulnerable employees shelter in place and avoid leaving the home as much as possible,” he said.

“If an employee is unemployed as a result of such concerns they are likely eligible for unemployment, including the extra $600 per week included in the CARES Act through July 31, 2020.  Such an employee may also be protected from termination and entitled to an unpaid leave of absence, or even paid leave under the Families First Coronavirus Response Act in certain circumstances.”

WORKING FROM HOME

Barron addressed whether employees legally have the option of working from home rather than going into the office.

“Generally, there is no legal right to work from home, but an employee with a medical condition that places the employee at risk of harm if he/she returned to the workplace may be entitled to work from home as a reasonable accommodation under the Americans with Disabilities Act (ADA),” he said. “Obviously, not every job can be performed remotely and an employer may be able to deny the request if it posed an undue hardship.”

BEING PROTECTED AT WORK

Barron also addressed what an employer is obligated to do to help ensure an employee’s health and safety at work.

“Each employer has a general duty under the OSHA law to provide a safe workplace,” he said. “Obviously, that looks different in each workplace and OSHA has provided general guidelines on its website. Many states have issued specific guidelines for certain industries like restaurants or retail operations.  If an employee contracts COVID-19 in the workplace, the employee may be eligible for workers compensation benefits.”

RAISING CONCERNS ABOUT CO-WORKERS

Employees may wonder about their rights if they believe a co-worker is sick.

“In extreme circumstances, an employee may lawfully refuse to work under the OSHA law if there is a risk of imminent harm in the workplace that is not remedied by the employer,” Barron said. “These cases can be difficult because the employer must balance the privacy rights of coworkers and not every sickness is Covid-19.  This is an area where cooperation and flexibility is important.”

EXPERIENCING A PAY CUT

Some employees have seen their salaries cut during the pandemic due to companies’ economic hardship. What are their rights?  

“Absent an employment agreement or union contract, an employer may lawfully reduce pay due to economic hardship, as long as the employer pays the minimum wage and overtime to non-exempt employees and pay exempt employees above the minimum threshold,” Barron said. “In some circumstances, employees who receive a cut in pay may be eligible for partial unemployment benefits.”

RECEIVING FAIR TREATMENT

Barron addressed employees’ options in general if they believe they have been treated unfairly during this time.

“A company’s HR department is always the best place to start if there is a dispute,” he said. “Many concerns can be resolved at the HR level without the need to seek legal assistance.  Many state and federal agencies have also issued guidelines and helpful information on their website, including the Department of Labor and Equal Employment Opportunity Commission (EEOC).

“Employees should also become familiar with the paid sick leave provisions under the recently passed Families First law, which will remain in effect until December 31, 2020.  Employers with less than 500 employees should have a poster in the workplace explaining rights to leave under this newly passed federal law.”

Stay safe at work

According to the CDC and OSHA, there are steps employees should follow to help prevent exposure to coronavirus:

  • Frequently wash your hands with soap and water for at least 20 seconds or use an alcohol-based hand rub that contains at least 60% alcohol.
  • Avoid touching your eyes, nose, or mouth with unwashed hands.
  • Do not shake hands and use other non-contact ways of greeting. Practice social distancing as much as possible.
  • Avoid elevators with two or more people. Keep your distance and turn your face away from the other person.
  • Do not go to work if you are sick.
  • Avoid close contact with people who are sick.
  • Clean and disinfect frequently touched objects and surfaces in your work area, including tables, desks, keyboards, phones, handrails and doorknobs.
  • Avoid using other employees’ phones, desks, offices or other work tools and equipment when possible. If necessary, clean and disinfect them before and after use.

Employee resources

  • American With Disabilities Act (ADA), 800-514-0301, ada.gov
  • Centers for Disease Control (CDC), 800-232-4636, cdc.gov
  • Equal Employment Opportunity Commission (EEOC), 800-669-4000, eeoc.gov
  • Occupational Safety and Health Administration (OSHA), 800-321-6742, osha.gov
  • Texas Workforce Commission (TWC), 800-939-6631, twc.texas.gov