Employers throughout the state continue to face a myriad of issues due to the coronavirus pandemic, from whether they can afford to stay open or reopen to how to keep employees safe. Here are frequently asked questions and the answers from the Texas Workforce Commission.
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) 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: 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: 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: 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.
Employers can help ensure safety
Businesses and employers can prevent and slow the spread of COVID-19 by taking the following steps:
- Select, implement and ensure workers use controls to prevent exposure, including physical barriers to control the spread of the virus, social distancing and appropriate personal protective equipment, hygiene and cleaning supplies.
- Schedule regular reminders by email for employees to avoid touching their faces and cover coughs and sneezes.
- Place hand sanitizers in multiple locations to encourage hygiene.
- Implement flexible worksites (i.e. telework) and work hours (i.e. staggered shifts)
- Use videoconferencing for meetings when possible.
- If videoconferencing is not possible, hold meetings in open, well-ventilated spaces.
- Consider adjusting or postponing large meetings or gatherings.
- Assess the risks of business travel.
- Limit food sharing among employees.
Sources: CDC, OSHA