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247,179 more Texans filed for unemployment, but their jobs might not be waiting for them when they return

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Another 247,179 Texans filed for unemployment last week.

That brings the total number of new claims in the state to about 1.8 million in the past seven weeks, since Gov. Greg Abbott declared the coronavirus pandemic a statewide emergency. Nationwide, 3.2 million filed for unemployment last week.

In light of retail stores and restaurants being allowed to reopen Friday, the Texas Workforce Commission relaxed its guidelines to allow employees to refuse to return to work for myriad reasons. They include being at high risk for COVID-19, the disease caused by the novel coronavirus, or living with someone who’s high-risk, as well as not having access to child care. But just because a worker can still receive benefits doesn’t mean their job will still be waiting for them once they do find it safe to return to work.

“The employer does have a right to replace an employee if that employee is not able to go to work,” commission spokesperson Cisco Gamez said Friday at a media briefing. “That person is not protected from being fired.”

Steve Shardonofsky, an employment attorney in Houston, said he worries that the conversation around the new guidelines may give workers a “false sense of security.” Though the modified guidelines allow more workers to stay home, Shardonofsky said disregarding the “fuller context” on the lack of job security could bring more job losses as an “unintended consequence.”

Workers “might be under the impression that their employer has to keep their job open for them and reemploy them. That’s not the case,” Shardonofsky said. “When the worker refuses to return, the company may at that time fill that position with someone else.”

The commission will evaluate claims on a case-by-case basis for people who aren’t able to return to work because of reasons tied to COVID-19. The commission did not provide data on how many workers have claimed they can’t return to work under the new guidelines — Gamez said the data would probably not be accurate because the new guidance is less than a week old.

Some legislation — such as the Family Medical Leave Act, the Americans with Disabilities Act and the Families First Coronavirus Response Act — include provisions that protect workers’ jobs when they go on leave. But the new flexibility on the state’s unemployment guidelines doesn’t automatically trigger the same protections, Shardonofsky said.

And while it’s considered “good practice” to send notices of job termination, Shardonofsky said it’s not legally required in Texas that employers notify workers that their previous job is being filled by someone else.

Some businesses may not be able to hold jobs open while they wait for workers to be able to return to their previous employment, Shardonofsky said. But he said employers shouldn’t rush to fire employees, considering the heightened uncertainty brought on by the novel coronavirus.

“Granted, it’s a very difficult decision for workers to make,” Shardonofsky said. “But there hasn’t been… a balanced discussion about the risks and consequences of refusing a job offer or refusing to go back to work if you’re on furlough.”