In this time of national crisis, when many employees are uncertain about their legal rights, the attorneys who are members of the Texas Employment Lawyers Association are here to help Texas employees!

The information on this page includes information about:

Unemployment Benefits
Pay Requirements for Work Performed at Home, Part-Time Work, and/or Over-Time Hours:
Workplace Accommodations for Employees with Disabilities
New Paid Sick Leave Benefits under the Family First Coronavirus Response Act:
What Employers Can and Cannot Do to Protect the Workplace:
- Yes
  - Taking Reasonable Precautions to Prevent Transmission and Protect Workplace Safety
- No
  - National Origin and Race Discrimination:
  - Family and Medical Leave Discrimination & Retaliation:
  - Worker’s Compensation Retaliation
  - Prohibiting Discussions about Working Conditions or Retaliating Against Workers Who Sign Petitions or Collectively Make Safety or Other Requests
Important Information if You are Deciding Whether to Complain about Safety Violations in the Workplace or Refuse “Unsafe” Work Assignments:
OSHA Protection

This general information is not a substitute for legal advice – so if you or a loved one need legal advice or help about your employment situation, please go to our “Find-a-Lawyer” page and choose a Practice Area (i.e. wrongful termination, unemployment compensation, family or medical leave, etc.) to get a list of attorneys who specialize in assisting individual employees. You do not need to fill in a lawyer’s name or any other fields to search by Practice Area.

Resources for Employees During the COVID-19 Crisis

Unemployment Benefits:

You can apply for unemployment benefits if you have been laid off or had your hours reduced due to COVID-19. The state is relaxing certain rules during the COVID-19 crisis, and has eliminated the waiting period for benefits.

The federal government is also planning on providing funding to states with large increases in unemployment benefit applications so it is possible that extended benefits and/or disaster relief benefits will become available even though they are not current available.

It will take diligence and patience to apply for the unemployment benefits you need during this crisis.

Information and answers to commonly asked questions is available at https://twc.texas.gov/news/covid-19-resources-job-seekers.
Applying online is likely your best and easiest option. You can apply online by clicking here.
If the main site is down, try this specific link to register online and apply for benefits:
The telephone # to apply is 800-939-6631. TWC’s Tele-Center is open from 8 a.m.-6 p.m. Central Time Monday through Friday.

If your application for benefits is denied, you will get a notice with instructions on how to file appeal. If you want to appeal, you must file your appeal by the deadline indicated in the notice you receive from the TWC. You will then get a telephonic hearing with hearing officer who has the authority to either reverse or uphold the initial decision.

If you need help appealing denied benefits or have other legal questions about your own individual eligibility for unemployment, you can go to Find-A-Lawyer and choose “Unemployment Compensation” in the practice area field to find an attorney who can assist you.

Pay Requirements for Work Performed at Home, Part-Time Work, and/or Over-Time Hours:

The Fair Labor Standards Act (FLSA) requires many, but not all, employers to pay at least the minimum wage for all hours a non-exempt employee works and overtime pay for working over 40 hours per week, regardless of whether the employee works those hours on the job or at home.

This law can also provide protection for salaried employees who are either misclassified or who have their salary docked or reduced for not working “full-time” or for working at home.

The Department of Labor provides answers to some common FLSA COVID19 related questions here > https://www.dol.gov/whd/healthcare/flu_FLSA.htm.

If you need individual legal advice, go to Find-A-Lawyer and choose “minimum wage/tip sharing”, “overtime hours”, or “unpaid wages” in the Practice Area field to find a lawyer knowledgeable about wage and hour laws and the FLSA.

Workplace Accommodations for Employees with Disabilities

The laws on workplace accommodations for employees with disabilities apply to:

any employer with 15 or more employees;
federal, state and local government employers;
employers that receive certain federal money;
unions; and
employment agencies

If you work for one of the above, you can ask for a reasonable accommodations if, for example, you (a) can’t be at work because you have COVID-19; (b) have another disability that puts you at a high risk (e.g., heart disease, lung disease, diabetes, HIV); or (c) have a mental-health condition that is caused or aggravated by the pandemic.

You may need to give a doctor’s letter supporting your need for an accommodation. Reasonable accommodations might include teleworking, temporary leave, isolation, or protective equipment. The employer does not have to give an accommodation that would be an undue hardship to its business, but the law requires that both you and your employer work together in good faith to communicate about your specific needs and identify possible accommodations.

For more information, you can also visit Disability Rights Texas’ Question and Answer page about disability discrimination in the age of COVID19.

New Paid Sick Leave Benefits under the Family First Coronavirus Response Act:

On March 18, 2020, Congress passed a new law that provides for Emergency Paid Sick Leave and Emergency Family and Medical Leave for certain employees who work for employers with fewer than 500 employees.

This chart explains who is eligible for these new benefits and how much these benefits pay as compared to traditional FMLA leave:

*A Serious Health Condition is defined by law to include serious conditions that require an overnight inpatient care (i.e. hospitalization), that cause 3 or more days of incapacity and require a certain level of treatment within 30 days (i.e. at least two doctor’s visits, or a doctor’s visit with a follow-up treatment regiment), chronic conditions like asthma, diabetes, or epilepsy, or any period of incapacity related to pregnancy or prenatal care. A Serious Health Condition may include more severe COVID19 symptoms or cases that require overnight hospitalization or cause 3 or more days of incapacity with the required level of medical treatment, but would not apply to mild or brief cold, allergy, or flu symptoms that don’t require overnight inpatient care or cause three or more days of incapacity.

**See, https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs28m.pdf, for a Fact Sheet on Leave Available to Spouses, Children, and Parents of a Deployed, Injured, or Seriously Ill Servicemember, including the National Guard.

Para más información en español, visita la página de Texas RioGrande Legal Aid.
For more information in English, you can visit Texas RioGrande Legal Aid’s question and answer page.
The U.S. Department of Labor has also published a Fact Sheet for Employees, and Question and Answer page, that may help answer your questions about these new paid sick leave and emergency paid FMLA leave.

If you need individual legal advice about whether you or a spouse are eligible for these new types of paid or partial paid leave or traditional, unpaid FMLA Leave, are having trouble getting approved to take leave, or experience discipline, discharge, or other discrimination after taking such leave, you can go to Find-A-Lawyer and choose “Family or Medical Leave” in the Practice Area field to find a lawyer experienced in this area of law.

What Employers Can and Cannot Do to Protect the Workplace:

YES:

Taking Reasonable Precautions to Prevent Transmission and Protect Workplace Safety

The Equal Employment Opportunity Commission (EEOC) has published guidance on what employers can do in terms of sending sick workers home, requiring medical examinations or taking the temperature of employees, and requiring a doctor’s certification to return to work. Click here to read the guidance.

The Occupational Safety and Hazards Administration, OSHA, has also published guidance on what employers should do to protect workers from COVID19, including guidance and identifying and isolating suspected cases, environmental decontamination, and worker training. Click here to read the guidance.

NO:

National Origin and Race Discrimination:

An employer can never single someone out for discriminatory treatment due to their national origin or race. Title VII and 42 U.S.C. section 1981 protect workers from national origin discrimination and race discrimination.

An employer will more than 15 employees also cannot discriminate against employees because of their age, pregnancy, pre-existing disability status, gender, or religion.

The question of whether an employer has legitimate business reasons for its actions or is singling out or otherwise discriminating against an employee is a questions are member attorneys are very experience analyzing, so if you need legal advice about your individual situation, you can go to Find-A-Lawyer and choose “Discrimination” or “Racial Harassment” in the Practice Area field to find a lawyer experienced in this area of the law.

Family and Medical Leave Act Discrimination & Retaliation:

Employers who are covered by the Family and Medical Leave Act and the new Families First Coronavirus Response Act cannot discriminate or retaliate against workers for taking the new Emergency Paid Sick Leave, Emergency Family and Medical Leave, or traditional Family and Medical Leave. If you need advice about taking leave or about discrimination or retaliation you’ve experienced after taking leave, you can go to Find-A-Lawyer and choose “Family or Medical Leave” in the Practice Area field to find a lawyer experienced in this area of law.

Workers Compensation Retaliation:

Employers who have workers compensation insurance cannot discriminate or retaliate against workers for reporting workplace injuries or filing workers compensation claims. If you need advice after experiencing discrimination or retaliation due to a workers compensation injury or claim, you can go to Find-A-Lawyer and choose “Retaliation” in the Practice Area field to find a lawyer experienced in this area of law.

Prohibiting Discussions about Working Conditions or Retaliating Against Workers Who Sign Petitions or Collectively Make Safety or Other Requests

Employers cannot prohibit workers from talking to each other about working conditions, such as pay and leave policies, workplace safety, etc., Employers cannot retaliate against workers for expressing concerns about their working conditions to their co-workers verbally or on social media, cannot retaliate against workers for circulating or signing petitions about working conditions or workplace safety, and cannot retaliate against workers for attempting to unionize or supporting a unionization effort.

The National Labor Relations Act is the law that makes it an unfair labor practice for an employer to prohibit communication and collective action amongst workers. If you need advice after experiencing discrimination or retaliation due to your communications with your co-workers, social media posts, advocacy, petition, or unionization efforts, you can go to Find-A-Lawyer and choose “Retaliation” in the Practice Area field to find a lawyer experienced in this area of law.

Important Information if You are Deciding Whether to Complain about Safety Violations in the Workplace or Refuse “Unsafe” Work Assignments:

Texas whistleblower laws are very narrow, and do not protect all types of complaints or all employees.

You may have whistleblower protection under Texas state law if:

You are a state government, city, county, or public employee and you complain about a legal violation of a Federal or state law;
You are a doctor, nurse, or other employee or contractor working at a hospital or other qualifying “mental health facility or treatment facility” and report a violation of a Federal or state law or a violation of a rule of a Federal or state agency to your supervisor, administrator, state regulatory agency, or law enforcement agency; or
You are a nurse who has requested a safe harbor peer review or has refused to engage in or reported conduct that would violate his/her duty to a patient, Board of Nursing rules or expose a patient to a serious risk of harm (for more details, see this site.); or
You are employed by a private employer, are asked to perform a criminal act (or violate a law that carries criminal penalties), and refuse to perform that criminal act.

Texas RioGrande Legal Aid has posted Questions and Answers about whether employees have protection for refusing to violate a shelter-in-place order in English, y en Español. Employees should be aware that the answer to this question greatly depends on the wording of the particular local order at issue, whether it carries criminal penalties, and whether the employee works for an employer that is exempt from the shelter-in-place order under the order’s definition(s) of essential businesses, essential retail, essential critical infrastructure, and essential services supporting essential businesses.

Also, anti-discrimination laws, prohibit employers with 15 or more employees from retaliation against employees who report sexual or racial harassment, or race, national origin, gender, pregnancy, age, disability, or religious discrimination.

OSHA Protection:

You DO have protection from retaliation if you file a complaint with OSHA, the Federal Occupational Safety & Hazard Administration.

You may also have protection under these laws if you refuse to perform an unsafe task. We do not yet know what tasks OSHA will consider safe or unsafe during the COVID19 outbreak, and simply requiring you to continue to go to work may not be considered an unsafe task, especially if the employer is taking precautions such as increased cleaning or disinfecting work spaces, staggering shifts, providing personal protective equipment, encouraging hand-washing, discouraging or prohibiting the sharing of equipment, etc.

You cannot sue your employer for this type of retaliation in a court of law. You will need to file a retaliation complaint with OSHA within 30 days of the act of retaliation. The hotline number for reporting safety violations to OSHA and instructions on how to file OSHA retaliation complaints can be found here.

If you need advice about engaging in whistleblower activity or about retaliation you’ve experience on the job, you can go to Find-A-Lawyer and choose “Retaliation” in the Practice Area field to find a lawyer experienced in this area of law.

Our thanks to TELA member Christine Hopkins of Tremain Artaza, PLLC for drafting the content for this page.

Last Updated: March 27, 2020

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