Disaster Aftermath - Employment Law Issues

In the aftermath of Hurricane Harvey in 2017, employers have been asking some important questions about how to handle employment issues after a disaster (weather-related, fire, flood, earthquake, and the like). Below are the questions we have been hearing most frequently:

Q: How should my employees who are out of work because of a disaster contact TWC?

A: They may either call the Tele-Center toll-free number 1-800-939-6631, or else submit their unemployment claim online through https://twc.texas.gov/jobseekers/unemployment-benefits-services and select the disaster-affected option if applicable.

Q: I’ve had to lay off some employees, but if they file unemployment claims, will there be any relief from what those claims will cost my business?

A: If an employer finds it necessary to lay an employee off due to a business closure, even a temporary one, that resulted from a natural disaster, it is possible for a private-sector that pays unemployment taxes to receive protection from a chargeback of regular unemployment benefits if the affected employee files an unemployment claim during the period of closure. However, the employer must respond to any claim notices or rulings in a timely manner and explain the circumstances as fully as possible in order to apply for chargeback protection. TWC may extend deadline requirements in cases where an employer or claimant is unable to be reached. Reimbursing employers and public employers are not eligible for such chargeback protection, so such employers would have some direct costs associated with regular UI benefits paid to disaster-affected employees. On the other hand, disaster unemployment assistance (DUA) benefits are paid from federal funds and are not charged back to employers, regardless of whether they are public or private, or taxed or reimbursing. DUA benefits, made available especially for victims of disaster, are available to individuals who have applied for and used all regular unemployment benefits from any state, or do not qualify for regular unemployment benefits and meet one or more of the following requirements as a direct result of the disaster:

A full description of the requirements for DUA claims is on the TWC website at https://twc.texas.gov/jobseekers/disaster-unemployment-assistance.

Q: I just want to be sure about this - if I have a private, taxed account with TWC, I will have no costs at all associated with regular UI benefits paid to my disaster-affected employees?

A: That is a very good question! Despite the chargeback protection for individual private taxed employer accounts, non-charged benefits are not entirely without an effect. Under Texas law, non-charged benefits go into a pool of what can be called “ineffective chargebacks”, i.e., benefits that cannot be charged to the account of individual employers, and since the non-charging of such benefits lowers the amount in the UI trust fund out of which UI benefits are paid, such chargebacks must be distributed pro-rata among all private taxed employers in Texas through the replenishment tax and the replenishment ratio.

Q: We usually mail paychecks, but the mail delivery has been severely disrupted in my area. How can we stay within the law?

A: The Texas Payday Law also allows hand-delivery of paychecks, direct deposit, delivery to a third party with the employee’s written authorization, and delivery by any other reasonable means that the employee agrees to in writing. Communicate as well as you can with your employees regarding their pay, and document your efforts along the way.

Q: Speaking of disrupted mail delivery, are there any exceptions to claim and appeal deadlines for employers and claimants who have to deal with claim-related documents from TWC?

A: In such cases, the claimant or employer would need to provide good evidence of any mail problem and should explain those issue(s), since such issues are addressed on a case-by-case basis.

Q: If the mail system is a problem in my area, what alternatives do I have?

A: It is also possible to file responses and appeals by fax (the applicable fax number will be specified on the document to which you are responding) and even online, using the resources at https://twc.texas.gov/jobseekers/unemployment-benefits-services (for claimants) and https://twc.texas.gov/businesses/unemployment-claim-management-appeals (for employers).

Q: I’ve got a very small business. If I have to shut down for a while, is it possible for me to file an unemployment claim?

A: That is quite possible, depending upon the nature of your company. Here are the possibilities:

Q: My company has a "no-fault" attendance policy limiting the number of absences an employee can have. I would assume that absences caused by the disaster should not count under that policy?

A: That is correct. Just as with things like jury duty, military duty, or voting, absences due to closure of the business based on bad weather or other similar disaster or emergency condition should not count toward whatever absence limit a business has. On the other hand, if the business is open, and other employees are able to make it in, elective absences by employees may count toward an absence limit. Before such an absence is counted against an employee, the policy should provide the absent employee an opportunity to document how their attendance on such days would not have been possible. Finally, although many evacuation orders have already expired, some are still in effect, and Section 22.002 of the Texas Labor Code protects employees who left their place of employment due to an evacuation order from discrimination, i.e., adverse action, based on an evacuation-related absence. Bottom line: be as flexible and accommodating as possible with your employees who have been directly impacted by an evacuation and/or disaster damage.

Q: I’m the HR director at a small company. Our general manager is talking about firing an employee who is unable to come in on time due to roads being closed. What can I tell the manager?

A: Generally, it is inadvisable to take adverse action against employees who are simply unable to make it to work on time, due to factors outside their power to control. Failure to come into work on a day when authorities have closed area roads and are recommending against travel will likely not be considered disqualifying misconduct in an unemployment claim. An employer would have the burden of proving that the employee really could have come to work, despite the adverse conditions. It would probably work a lot better to talk over the situation with the employee and explore alternatives, such as a temporary change in work hours, doing some work from home, or other options.

For further information on common problems on bad-weather days, see the topic "Bad Weather - Pay and Attendance Issues" elsewhere in this outline for Part II.

Employers with employment law-related questions may call the toll-free hotline for employers at 1-800-832-9394, Monday - Friday, 8:00 a.m. - 5:00 p.m., or send an e-mail to employerinfo@twc.texas.gov. Employees and unemployed individuals may call 1-800-939-6631 for information on filing regular unemployment or DUA claims, or they may use the online tools available at https://twc.texas.gov/jobseekers/unemployment-benefits-services (regular UI claims) or https://twc.texas.gov/jobseekers/disaster-unemployment-assistance (DUA claims).

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