In March 2020, Governor Abbott joined several other governors around the nation to formally declare COVID-19 to be a public health disaster. Subsequently, Governor Abbot issued several executive orders limiting commercial activities to only those that were considered “essential businesses.” This meant that many Texans were left without work and eligible to receive unemployment benefits to help them through these troubling times. As we enter the gradual re-opening of businesses, a large swath of pressing questions presents itself to many workers that are worried about what could be seen as a premature action in light of the health risks. I will aim to shed light on two major questions that are frequently posed to us.

If I refuse to go back to work, am I still eligible for unemployment benefits?

If you are currently receiving unemployment benefits and your old employer offers you to return you to work (whether you were furloughed or laid-off) this may interfere with your unemployment benefits. Under the Texas Unemployment Compensation Act (“TUCA”), a worker is disqualified from receiving unemployment benefits when they refuse an offer of suitable work without good cause. The opening up of the economy will put many workers in the tough position of either accepting a job that will most likely pay them less than their unemployment benefits while simultaneously putting them at risk of contracting COVID-19 or losing their unemployment benefits and being left to fend for themselves. This is the unfortunate reality that many Texans will be facing.

While a counter argument can be asserted that due the considerable health risks that COVID-19 imposes on workers, a position offered that requires face-to-face interactions with multiple other people is not suitable work as contemplated in the act. This argument is supported by statutory language of the TUCA, which states that in determining whether work is considered suitable the degree of risk to an individual’s health, safety, and morals must be taken into consideration. However, since the reopening of many businesses comes as a result of Governor Abbott’s executive order, the TWC, an organ of the State of Texas, will most likely side with Governor Abbott in asserting that the work is suitable unless special circumstance exists.

If you find yourself in a situation where you are not sure if you are in one of those special circumstances it is best to talk to trained legal professional in assessing your situation so that you can make an informed decision.

I am an at-risk worker; can I continue working from home?

Even though COVID-19 has left much uncertainty in the workplace, the one thing that is still true is that you still have rights as a worker. For the workers that have been allowed to work from home due to COVID-19, the re-opening of the economy will most likely mean that your employer will request that you resume coming into the office. But what happens if you suffer from a serious medical condition that puts you as an individual with a high-risk for severe illness from COVID-19.

As mentioned above, COVID-19 has not abrogated your existing rights. This means that the American with Disabilities Act is still in full effect. The ADA forbids employers from retaliating or discriminating against employees that suffer from a disability. Further, employers are forbidden from retaliating against an employee for making a request for a reasonable accommodation based on their disabilities. In the case of individuals with medical conditions that puts them at a high risk of suffering from severe COVID-19 infections, they should feel free to ask their employers to continue working from home as a request for a reasonable accommodation for their disability.

It is important to note that there are moments when employers can reject the accommodations sought by their employees. But this should only be after a fact intensive inquiry into the facts surrounding the accommodation.

If you feel like your employer is ignoring the law or if you are seeking guidance on how to proceed, we recommend that you contact an experience employment attorney.

To conclude, these are only two questions of the myriad of issues that are arising as the economy is reopening. If you have other concerns about the reopening of businesses, we encourage you to call our office to make an appointment to talk to a Texas Employment Lawyer.

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Photo of Jairo N. Castellanos Jairo N. Castellanos

We asked Jairo N. Castellanos, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Mr. Castellanos

We asked Jairo N. Castellanos, an experienced Trial Attorney in the Austin office of Wiley Walsh, P.C., to impart his candid answers to a range of questions. After reading, you will be more more informed on the well-respected reputation that Mr. Castellanos carries.

1. Why did you start practicing labor and employment law?

I think labor and employment law is a fascinating part of the law that impacts everyone. Most people spend nearly as much time at work as they do with their family.

2. Who is your favorite Supreme Court Justice?

My favorite sitting justice is Justice Sonia Sotomayor.

3. What skills do you value as an employment attorney?

I think an important skill to have as an employment attorney is the ability to tell people’s stories. It is important to be able to effectively convey entirety of the case beyond the legal aspects of it.

4. What do you do when you’re not practicing law?

I like to read fiction and spend time with my daughter.

5. What’s your favorite legal movie

That is a toss-up between A Civil Action and My Cousin Vinny.

6. What’s your favorite legal TV show

Always Sunny in Philadelphia when they are discussing bird law.

7. Have you ever learned something from one of your clients?

I’ve learned that there is no one size fits all solution to dealing with issues. Much like there is no one size fits all way of approaching a problem.

8. If you could argue any case in history, what would it be?

Brown v. Board of Education of Topeka.

9. What do you most want your clients to know about you?

That in me they can find someone that will fight his hardest for them regardless of the outcome.

10. Who’s your favorite judge?

Former Chief Justice John Marshall

Jairo N. Castellanos is a Trial Attorney in the Austin office of Wiley Walsh, P.C.  He graduated from The University of Nevada in Las Vegas with a bachelor’s degree in 2009.  Mr. Castellanos then graduated from The University of Texas School of Law in 2015. Mr. Castellanos is fluent in English and Spanish.