Rehiring Your Employees During the Pandemic
By Jeanine Lehman, Attorney at Law
During the pandemic, dentists face daunting tasks for reopening their practices and continuing operations, including obtaining adequate personal protective equipment, putting safety protocols in place, addressing COVID-19 in the workplace, and navigating the ins and outs of financial options, including the Paycheck Protection Program. One of the most difficult tasks for some practices is rehiring employees, who may receive more money on unemployment than for working.
CARES Act Federal Payment. Under the CARES Act, for pandemic unemployment, the federal government provides an extra $600 of weekly benefits. This is in addition to State of Texas unemployment benefits. This extra amount is last payable the week of July 25, 2020, unless extended. With the extra $600, many unemployed individuals receive more on unemployment than working. For example, a person, who had been working 40 hours a week at $16/hour, receives $933/week on unemployment vs. $640/week from working.
Rehire Offer. The offer to rehire an employee should be in at least two written formats. For example, by letter, email, and text, as well in person or by phone. The offer should include all the terms, including rate of pay, location, job duties, and schedule. A written notice of how the practice is providing a safe working environment should also be provided. Records should be kept of the two written forms of the offer and the safe working environment notice.
Voluntary Incentives. A dental practice may voluntarily offer incentives to encourage employees to come back to work – for example, raises, re-employment bonuses, training, scheduling changes, or other benefits.
Refusal of Rehire. The Texas Workforce Commission (TWC) on its website states that “If you offered any of your employees a chance to return to work and they refused, TWC needs to know. Please report each individual who refused to return to work on our online Employee Work Refusal documentation.” Here is the link: https://apps.twc.state.tx.us/EBS_REF/ewrd/employeeWorkRefusalDoc A copy of the completed online Employee Work Refusal form should be saved via printing or screenshot. If a rehire offer for a suitable position is refused and there is not an exception to rehire, the employee will most probably become ineligible for unemployment benefits.
Exceptions to Rehiring. On June 16, 2020, the TWC provided guidance to unemployment claimants concerning continued eligibility for unemployment benefits if they refuse rehire. While each case is evaluated by the TWC on an individual basis, because of the COVID-19 emergency, the following are reasons benefits would be granted if the individual refused suitable work:
- People 65 years or older, and/or people with medical issues, like heart disease, diabetes, cancer, or a weakened immune system, or who are at a higher risk for getting very sick from COVID-19. (Source: DSHS website)
- Household member at high risk – People 65 years or older or who are at a higher risk of getting very sick from COVID-19 (source DSHS website).
- Diagnosed with COVID – the individual has tested positive for COVID-19 by a source authorized by the State of Texas and is not recovered.
- Family member with COVID – anybody in the household has tested positive for COVID-19 by a source authorized by the State of Texas and has not recovered, and 14 days have not yet passed.
- Quarantined – individual is currently in 14-day quarantine due to close contact exposure to COVID-19.
- Child care – Child’s school or daycare is closed, and no reasonable alternatives are available.
Work Search Requirement Reinstatement. Early in the pandemic, the TWC waived the work search requirement for unemployment benefits. On June 16, 2020, the TWC announced that starting July 6, 2020, the work search requirement will be reinstated. This means that unemployment claimants will need to engage in specified amounts of work searches and document the same. The goal is to find suitable employment and to return to work. With late June’s surge in COVID-19 cases and hospitalizations, the reinstatement of the work search requirement may be reconsidered by the TWC.
Changing Requirements. During the pandemic and its aftermath, considerations for employment and operating a dental practice will be subject to changing laws, orders, rules, and opinions. Therefore, ongoing vigilance and consultation with a knowledgeable attorney concerning changes will be critical.
Jeanine Lehman is an Austin, Texas dental, health and business law attorney with a statewide practice – www.jeanine.com. She can be reached at (512) 918-3435 or Jeanine@Jeanine.com. © Jeanine Lehman 2020. This article is not legal advice.