By SELENA SEABROOKS
The Dallas Examiner
As Texans have begun the process of recovering from the COVID-19 pandemic, Gov. Greg Abbott announced his decision to allow all businesses across the state to operate at 100% capacity and end the facemask mandate throughout the state, during a March 2 media conference. The new order, effective March 10, would mean significant changes for business owners, staff and patrons.
On March 10, the Texas Workforce Commission hosted a Virtual Town Hall on Texas 100% Reopening to address questions regarding the new orders. Aaron Demerson, commissioner representing employers for the Texas Workforce Commission, moderated the event, opening with a quote from Gov. Greg Abbott.
“Texans are battling a colossal challenge, an invisible enemy that has tested our lives and livelihoods. But, overcoming challenges is part of who we are as Texans,” Demerson recited.
He then introduced the panel, which included Adriana Cruz, executive director of Texas Economic Development and Tourism, and legal counsels, Tommy Simmons, Elsa Ramos, Velissa Chapa and Mario Hernandez.
Demerson commented that Texas is taking “bold action” to ensure that employers had the information to make the necessary decisions for their businesses. He stated that all businesses within the state of Texas may open to 100% capacity but may also still limit capacity or implement additional safety precautions at their discretion.
The town hall was then turned over to Cruz, who spoke briefly about her role at the governor’s office. She then stated that Texas remained the No. 1 state for economic development for 2020 and was recently awarded its nineth Governor’s Cup for economic development project activity.
Cruz stated that Abbott decided to open Texas businesses to 100% capacity due to Texans being unable to work, small businesses struggling to pay bills, improvements in COVID-19 numbers, and medical advancements in COVID-19 treatment. She explained that Texas has sufficient medical supplies, testing and antibody therapeutic drugs to treat COVID-19, heal Texas and keep Texans out of the hospital. She said Texas has mastered safety protocols to prevent Texans from getting COVID-19. Nearly 7 million Texans have been vaccinated and that Texas is administrating nearly 1 million vaccines per week, which she predicted would increase.
Demerson then began a Q&A session, asking the legal counselors a series of questions. He indicated that the responses provided were for information purposes only, and not to provide legal advice.
Question: Can an employer mandate masks for employees and customers?
Ramos responded that, based on item 4 of the executive order, employers have the “freedom” to make the “rules” and explained that employers may mandate employees and customers to wear masks.
Question: Can an employer stop an employee from wearing a facemask?
Simmons responded that the employer should be careful when addressing this question. The state of Texas does not technically prevent employers from stopping an employee from wearing a mask; however, Simmons advised employers that an action of this nature may “run afoul” with OSHA and CDC guidelines for certain types of work environments, leaving the employer exposed in the event of any harm to the employee. A directive of this nature may also result in an OSHA retaliation complaint.
Question: Can an employer still be liable for not enforcing mask use?
“Possibly yes,” Chapa answered, explaining that employers can still be liable for not enforcing mask use if the failure to enforce results in an unhealthy or unsafe working environment.
Demerson moved to questions specifically related to the restaurant operations.
Question: Could restaurants continue to require customers to wear a facemask when customers are not seated at their table?
Hernandez responded that the business is entitled to set its policies regarding the wearing of facemasks by employees and customers.
Question: Has there been any clarification on the previous 6-feet spacing rule, and are restaurants still required to provide workstations and table seating, with 6-feet spacing?
Hernandez answered that restaurants should follow the guidance provided by the CDC, OSHA and Texas Department State Health Services. He further advised restaurant owners to seek the advice of a private-sector attorney in their local town, who specializes in business law.
Question: Could a company discipline or discharge an employee for not wearing a facemask if the company requires its employees to wear a facemask?
“Maybe,” Chapa responded, and explained that an employer requiring the wearing of a facemask is similar to the enforcement of a company-wide dress code. Therefore, an employer can discipline or move to terminate an employee for not wearing a facemask, similar to how the company would discipline or move to terminate an employee for violating the company’s dress code. However, Chapa cautioned that there are exceptions. If an employee refuses to wear a mask due to religious reasons, the employer may be required to reasonably accommodate the employee’s request.
Chapa further stated that employers could not request proof of religion. An employee may also refuse to wear a mask due to medical reasons, which the employer should also reasonably accommodate. In this instance, the employer may request medical documentation that is consistent with business necessity to determine the type of accommodation needed by the employee. She cautioned that the medical documentation is confidential and should only be used on a need-to-know basis.
Demerson moved to the health care industry.
Question: Are health care facilities permitted to refuse the treatment of patients who entered their facility and refused to wear a mask and/or have their temperature checked?
Ramos responded that health care facilities were allowed to refuse the treatment of a patient who refused to wear a mask and/or have his or her temperature checked.
Question: Are companies obligated if an employee gets infected in the workplace with COVID-19?
Hernandez responded that the employer should follow the guidelines provided by the CDC and advised employers to gather information about the workplace infection, in the event of a worker’s compensation claim being filed.
Question: Are there were any requirements for employees to return to their physical workplace or office?
Simmons replied that this would be regulated by a company’s policy and explained that it is the company’s discretion as to which staff should work within the office or work remotely.
Question: How are businesses protecting their employees?
Chapa stated that employers should first follow federal guidelines and referenced the CDC and OSHA websites. She advised employers to continue to sanitize the workplace, social distance, require face coverings and allow remote working when possible to keep fewer employees in the workplace. She also discussed shift movements and/or shift changes to ensure employees were not all in the office or workplace at the same time.
Question: Can employers mandate employees to get vaccinated?
“Yes,” Chapa responded, but indicated that employers must do so “correctly.” She explained that no law requires or prevents an employer from mandating vaccination; but cautioned that employees have protective rights that must be considered. If an employer, regardless of the industry, wanted to mandate vaccination for its employees, the employer must have a “written” policy that provides employees the option to opt-out of the vaccination for one of the two legally protected reasons: religion and medical contraindication. The written policy should indicate who the employee should contact in the event the employee refuses to be vaccinated.
Chapa added that if an employer receives a request to refuse vaccination, the employer should look into a reasonable accommodation for the employee. She further advised that under the National Labor Relations Act, employees are permitted to discuss their working conditions with each other. As such, employees are allowed to discuss whether or not they were vaccinated with their coworkers, within the workplace.
Question: Is an employer or employee required to quarantine after returning from an out-of-state or town trip?
Ramos responded that Texas does not currently have any requirements for an employer or employee to quarantine following a trip and advised employers to review the travel guidelines provided by the Texas Department State Health Services on their website. However, similar to an employer requiring an employee to quarantine due to being exposed or potential exposure to COVID-19, the employer can require an employee to quarantine following the return from an out of state or town trip.
Question: In the event of an employee needing to quarantine, is the employer required to compensate the employee during the quarantine time period?
Ramos stated that employers are no longer required to compensate employees who are required to quarantine; however, she explained that some companies’ policies might allow employees to use their sick leave to cover their time away from work. Ramos further explained that there is no requirement to compensate hourly employees for time they did not work; but for a salary and/or exempt employee, if the employee worked any portion of the week, the employer is required to compensate the employee for the entire week. However, if a salaried and/or exempt employee does not work for an entire week, the employer is not required to compensate him or her for the week. Ramos advised employers to review their leave policies to determine if the employee would be able to use their leave time to cover their absence.
Question: Are employers required to compensate employees for time away from work, used to get vaccinated, as well as, if employers are required to cover the cost of vaccination?
Chapa stated that no law requires employers to compensate employees for time away from work, used to get vaccinated. However, if the company had a paid time off policy, the employer could make leave time available or an option for the employee. Chapa advised employers to pay for the time away from work to get vaccinated as a “goodwill gesture.” Regarding the employer covering the cost of the vaccination, the employer would only be required to cover the cost of the vaccination if the employee is hourly and the cost of the vaccine takes the employee below minimum wage for every hour worked. However, it is “best practice” for an employer to cover the cost of the vaccination if the employer is requiring or suggesting their employees to be vaccinated.
Question to Hernandez: Are employers required to compensate employees who got sick from COVID-19? If so, for how long must the employer compensate the employee?
Hernandez responded that there is no law in the private sector for Texas that requires employers to provide paid sick leave. Paid sick leave is controlled by the employer’s leave policy.
Question: What obligations do employers have if an employee asks to be compensated for being away from work due to COVID-19, at no fault of the employer?
Chapa suggested that employers refer to their company’s paid leave policy. If an employee does not have enough leave time accumulated and the employer is unable to compensate the employee, the employee may opt to file for unemployment compensation.
Question: Can an employer be held liable for unemployment compensation if an employee is terminated for refusing to return to the workplace?
Ramos responded that employers are eligible for “chargeback protection” if an employee’s separation was caused due to COVID-19 but cautioned that each instance is reviewed on a case-by-case basis. In the event of an employee refusing to return to work following a company “recalling” its employees back to work, the company has the option to report the employee to TWC, using the TWC employer portal which is provided on the TWC main webpage.
Ramos further stated that an employee may refuse to return to work for the following reasons, and may still qualify for unemployment compensation benefits, if:
- The employee is age 65 and older.
- The employee has a medical condition that puts him or her at higher risk of getting COVID-19.
- A member of the employee’s household is age 65 or older, or has a medical condition that puts the household member at higher risk of getting COVID-19.
- The employee tested positive for COVID-19 and has not recovered.
- The employee has a household member who tested positive for COVID-19 and has not recovered within the last 14 days.
- There are issues at the employee’s child’s school or daycare and there are no other “reasonable” alternatives for child care.
Next, Demerson took questions from webinar attendees.
One attendee asked: Are there potential liabilities for a company that decides to discontinue the requirement of facemasks and employees refuse to return to the workplace because of this decision?
Chapa responded that the employee might resign his or her position and file for unemployment compensation. Depending upon the employee’s tenure with the company, the employee may be eligible for unemployment benefits. However, each claim is reviewed on a case-by-case basis.
Chapa stated that in her opinion, an employee resigning from his or her position due to the “general fear” of getting COVID-19, does not constitute a good cause for quitting. However, if the company is not following good safety practices, the employee could be eligible for unemployment benefits.
Another attendee asked: Can an employee can file for unemployment benefits, claiming disaster or COVID-19, after March 10?
“It depends,” Ramos responded, explaining that if a company decides to open 100% and allow employees to return to work, the employee may not be able to use disaster or COVID-19 as a reason for unemployment benefits. However, if the business decides not to open 100% and employees continue to be laid-off as a result, the employee may be able to use disaster or COVID-19 as a reason for unemployment benefits. She cautioned that each unemployment claim is reviewed on a case-by-case basis.
Question: Will the tax rates be retroactive, or will the rates begin with the July payroll?
Simmons said he believed the tax rates will be set sometime in late June. Once set, the tax rates will be retroactive to the beginning of the year, Jan. 1. He indicated that based on the most recent information received, he believes tax rates will be extended. The first quarter payment deadline would be extended to Aug. 2, the second quarter deadline would be extended to Sept. 30, and subsequent quarters will be due on the usual dates. He advised businesses to check the TWC website for additional updates.
Demerson noted that as a result of the pandemic, several businesses have shifted to telecommuting.
Question: Should employers consider revising their telecommuting policy?
Ramos advised employers that if telecommuting currently works for their organization and saves the organization money, they may want to consider continuing telecommuting. However, if the company wants to “get back to business” as it was pre-COVID, then the business should notify its employee as soon as possible and work to phase employees back into the workplace.
Cruz provided closing remarks from the governor’s office, thanked the panelists and advised the attendees to visit the governor’s website for upcoming events and webinar opportunities for small businesses.
Demerson stated that the webinar was recorded and would be provided on all social media outlets.