By: Mike Meltser, Attorney
EMPLOYEE Q AND A
What happens if I am making more money with unemployment than I was before, and my employer reopens for business and asks me to return?
The Texas Workforce Commission appears to be giving employees the benefit of the doubt with respect to unemployment eligibility during the COVID-19 pandemic. TWC guidance indicates that the following are valid reasons for refusing to return to work:
- Being 65 years or older, and/or having significant medical issues like heart disease, diabetes, cancer, or a weakened immune system
- Having a household member at high risk
- Being diagnosed with COVID-19
- Having a household member diagnosed with COVID-19
- Being quarantined for 14-days due to close contact exposure to COVID-19
- Having your child’s school or daycare closed.
Outside of these specific reasons, any other situation will be subject to a case by case review by the TWC based on individual circumstances. We do note that the TWC has asked employers to report individuals who refuse to return to work.
What do I do if I'm too scared to return to work, because I am either in a high-risk category or just concerned in general about contracting COVID-19?
We encourage employees to communicate openly with their employers. Whether working remotely is possible depends on your business. Mize PC employees, for example, can easily work remotely. Construction workers cannot. It is important to know that there is no legal duty to allow an employee to work remotely when that means he cannot do his work.
If I get COVID-19, what monetary benefits am I eligible for under the new laws?
Based on the Emergency Paid Sick Leave portion of the Families First Coronavirus Response Act, if you work for a company with fewer than 500 employees, you are eligible to receive emergency paid sick leave.
The EPSLA entitles full-time employees to up to 80 hours of paid sick leave. The EPSLA generally entitles part-time employees to up to the number of hours that they work on average over a two-week period. The pay amount is capped at $511 per day and a maximum of $5,110 per employee.
If my child's school or daycare was shut down because of COVID-19, what monetary benefits am I eligible for under the new laws?
Under the Emergency Family and Medical Leave Act, if you have been employed for at least 30 days and work for an employer with fewer than 500 employees, your employer must provide you with 12 weeks of job-protected leave when you are “unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of such son or daughter is unavailable, due to a public health emergency.”
The first 10 days are unpaid, and the remaining 10 weeks must be paid at 2/3 of your regular rate, capped at $200 per day and a maximum for $10,000. At your request, you can substitute the 10 paid days under the Emergency Paid Sick Leave Act to substitute for the 10 days of unpaid EFMLA leave.
Please note that these monetary benefits are focused on childcare. The law does not require paid leave under the FMLA for any other reason.
Looking ahead to the fall, does anyone know what will happen if schools can't reopen (in-person) in August or September? Is there a plan for this? What happens to my job if school can't re-open until January, and I have two kids in elementary school?
The protections under the Emergency Family and Medical Leave Act extend through December 31, 2020. You will have the same benefits as described in the previous answer. Please note that EFMLA leave is limited to 12 total weeks.
If I have COVID-19, wouldn't it be a violation of the law for my employer to disclose my name to other employees, or the whole company?
Yes. Your employer has the right to inform your fellow employees of their possible exposure to COVID-19 in the workplace only if this is a confirmed case. Your employer cannot disclose your name to other employees because of the confidentiality requirements under the ADA and HIPAA.