Texas State COVID-19 FAQs

As Texas begins to re-open and businesses restore or start planning to restore operations, we at Paychex remain dedicated to serving you, your employees, and your business. Please see below for guidance and best practices around some common questions related to these new challenges for Texas employers.

Unemployment

What are the eligibility requirements for Unemployment Benefits in Texas?

Although specific eligibility requirements may vary by state, employees in Texas generally qualify if they:

• Are totally or partially unemployed (which may include layoffs and reductions in hours/wages);
• Lost their job through no fault of their own, did not quit (without good cause or without good reason unrelated to work, in limited circumstances), or were not terminated for misconduct;
• Have a minimum amount of wages earned in what is called the "base period," which is the first four of the last five completed calendar quarters before the initial claim’s effective date;
• At the time of application, are physically and mentally able to work, available for work (which includes having adequate transportation and child care, if necessary), and is actively seeking work, unless otherwise exempt from this requirement.

For more information on initial eligibility and ongoing eligibility requirements, how to apply for, and how to file a claim for Unemployment Benefits, please visit the Texas Workforce Commission (TWC) Unemployment Benefits website or explore the TWC’s Unemployment Benefits Services page.

Employee Safety & Travel Concerns

What current COVID-19-related travel restrictions are in place for Texas?

On May 21, 2020, Governor Greg Abbott passed Executive Order GA-24, which terminated all air travel restrictions previously established on March 26, 2020 that mandated temporary quarantines for all travelers arriving by air from select high-risk U.S. locations. Executive Order GA-24 also eliminated the previously established 14-day mandatory quarantine order for all travelers entering Texas on roadways from Louisiana, which was put into place on March 29, 2020. For a full overview of all the Executive Orders passed by Governor Abbott, please visit the Legislative Reference Library (LRL) of Texas Executive Order Resource Page.

Despite the passing of Executive Order GA-24, the State of Texas still encourages travelers to follow all guidance provided by the CDC and U.S. State Department regarding travel safety measures and social distancing and advocates that individuals remain up-to-date on all travel-related alerts, warnings, and/or restrictions.

For more information on travel-related restrictions, please visit the Texas Department of State Health Services (DSHS) Information for Travelers website.

As an employer, can I prevent my employees from traveling for vacation? If they’ve traveled by plane either internationally or to a high-risk U.S. location, can I restrict them from returning to work for a certain period?

Employers can encourage their employees to limit any nonessential personal travel, especially to high-impact areas, however, they cannot prevent them from traveling outright.

Employers should also educate their employees on the current COVID-19-related risks that are associated with traveling. Some of these travel risks can include but are not limited to potential/greater risk of exposure to coronavirus, becoming stranded due to federal, state, and/or local travel restrictions or closures, and/or having to comply with potential mandatory quarantine protocols for individuals who have recently traveled to and/or returned from a high-risk location. Employers should also advocate that their employees follow all safety, hygiene, and social distancing guidance provided by the CDC.

Employers can require an employee to work from home and to monitor their health for symptoms of COVID-19 for a 14-day period if the employee has:

• Recently traveled to an international location on the current CDC widespread transmission list;
• Recently been on a cruise ship or traveled domestically by air to an area with widespread transmission;
• Recently traveled to a high-risk location within the US under a CDC travel advisory;
• Recently been in contact with an individual with a known diagnosis of COVID-19;
• Or is a resident covered by a state or local ordinance requiring physical office closures.

If an employee who has recently returned from international travel displays symptoms of COVID-19, then employers can and should enforce any federal and/or state-mandated quarantine measures, regardless of whether their travel was for personal or business reasons. The same would apply for those who may have traveled to high-risk areas within the U.S. 

Employers should consider a policy about the above and communicate it to all employees in order to ensure awareness of the potential impact travel may have on their ability to return to the workplace. Before making business decisions that may alter your workplace, consider consulting with an HR professional and/or your legal counsel to help you ensure compliance with federal, state, and/or local law, and for the latest updates, refer to your state and/or local authorities.

How do I properly conduct COVID-19 temperature testing in the workplace? How do I maintain confidentiality with the test results, or if I must send an employee home? Are there any Equal Employment Opportunity Commission (EEOC) considerations that I should be aware of?

Temperature testing/screening can be conducted on-site at businesses to determine if an individual has a fever. Based on CDC guidance, a fever is just one of many symptoms of COVID-19 and conducting temperature screenings may be a way to potentially protect your employees and business. However, a fever does not always indicate COVID-19 and some with COVID-19 never experience a fever. Therefore, it is one method to consider, but alone may not necessarily be the most effective way to protect a work environment. Temperature testing/screening may also put the employee(s)/individual(s) assigned to take temperatures at a higher risk of exposure, which can create additional concern(s). Other safety methods to consider may include more consistent deep cleaning of the workplace, the reorganizing of work spaces to ensure individuals are spaced six or more feet apart, implementing or continuing remote work capabilities, if applicable, and/or staggering your staff to work on specified days. CDC guidelines also allow for virtual health screenings to be conducted rather than in-person health checks. For more information on this, please review the CDC’s Resuming Business Toolkit, General Business FAQs, or visit their COVID-19 website.

The Equal Employment Opportunity Commission (EEOC) generally considers temperature testing/screening to be a “medical examination.” The agency’s guidance generally permits employers to measure employees’ body temperatures as a result of the CDC and state/local authorities acknowledging that COVID-19 is community spread. It is possible the EEOC may revise this guidance in the future.

Before conducting temperature testing/screening, consider consulting with an HR professional and/or your legal counsel to help you to ensure compliance with state and/or local law.

If an employer plans to implement in-person temperature screenings at their business after discussing their options with an HR professional or legal counsel, they should consider:

• Who will take temperatures and how that person will be protected from exposure,
• Where temperatures will be taken,
• When temperatures will be taken,
• How temperatures will be taken,
• How the temperature screening equipment will be sanitized,
• Where the information/readings will be recorded,
• If recording this information, how will it be recorded and confidentially maintained separate from the employees’ personnel files,
• What steps to take for a high temperature,
• What safety protocols will be put in place and how they will be communicated to the screener(s) and employees,
• Ensuring the time waiting for and undergoing the screening process is considered compensable time.

All temperature screenings should be administered based on legitimate and nondiscriminatory business needs and should be as non-invasive as possible. Employers should also consider whether a third-party vendor will be used to conduct such screenings. Employee results of such testing are considered medical information and should be kept in a confidential file and separated from an employee’s personnel file.

Any employee showing symptoms of COVID-19 should be sent home immediately and encouraged to seek appropriate medical attention. If an employee has a confirmed case of COVID-19, employers should advise other employees who could potentially have had contact with the infected employee about possible exposure to COVID-19. Employers may not, however, disclose the name of the affected employee and should take all possible steps to maintain confidentiality.

In addition, employers may:

• Ask employees if they are experiencing symptoms of COVID-19.
• Request that employees notify them if they or a close family member tests positive for COVID-19.
• Inquire if employees have come into close contact with anyone that is known or suspected to have COVID-19.
• Inquire about employees’ personal travel plans, whether to other countries or within the U.S. (particularly regarding current “hot spots”).

An employer may not ask non-COVID-19-related medical questions, as these may impact an employee’s rights under the Americans with Disabilities Act (ADA). Employers must maintain confidentiality as required by the ADA and applicable state laws with respect to employee medical information.

Be sure to always consult with an HR professional and/or legal counsel before asking employees’ specific medically-related questions to help you to ensure compliance with federal, state, or local law.

For more information, please visit the Texas DSHS COVID-19 Resource Page, review our WORX article, explore the Paychex COVID-19 Help Center, and follow all safety guidance provided by OSHA, the CDC, and your state or local agencies.

Staffing Concerns

Can a grandparent be considered a child care provider/caregiver under the Families First Coronavirus Response Act?

According to the U.S. Department of Labor (DOL), the definition of a “child care provider” is an individual who cares for your child. This includes both persons who are paid to provide child care, such as daycare providers, babysitters, and/or nannies, as well as persons who provide child care regularly at no cost and/or without a license, such as grandparents, relatives, or neighbors.

For more information, please visit the DOL’s FFCRA Resource Page and review the Families First Coronavirus Response Act: Questions and Answers.

What is the Families First Coronavirus Response Act and who is eligible for covered leaves?

The Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA) are both included in the Families First Coronavirus Response Act (FFCRA). Employers should consider consulting with an HR professional and/or legal counsel to review their obligations under the FFCRA. Generally, the FFCRA provides employers with under 500 employees an option of refundable tax credits that reimburse them for the cost of providing paid sick and family leave wages to their employees for specific qualifying reasons related to COVID-19.

Small businesses with fewer than 50 employees may be exempt from providing certain paid sick leave and expanded family and medical leave if providing an employee such leave would jeopardize the viability of the business as a going concern. This is not an automatic exemption and must be analyzed on a case-by-case basis. The guidance provides for the criteria and documentation for consideration. The guidance further suggests that determination for an exemption must be documented at the time of each leave request. Employers with fewer than 25 employees may be exempt from certain provisions related to job protection. If considering claiming an exemption, and employer should consult with legal counsel to fully understand the complex parameters of these exemptions.

FFCRA requires employers to provide paid leave through two separate provisions:

• Emergency Paid Sick Leave Act (EPSLA) – employers must provide up to 80 hours of paid sick time to eligible full-time employees, and a pro-rated amount of paid sick time to eligible part-time employees, when they are unable to work for certain qualifying reasons related to COVID-19.
• Emergency Family and Medical Leave Expansion Act (EFMLEA) – employers must provide paid family and medical leave to eligible employees who take leave related to a qualifying reason related only to the employees need to care for a child whose school or place of care is closed due reasons related to COVID-19.

Emergency Paid Sick Leave – Under the EPSLA there are six qualifying reasons for which an employee is entitled to take paid leave related to COVID-19 if the employee is unable to work (including unable to telework) because the employee:

1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
2. has been advised by a health care provider to self-quarantine related to COVID-19;
3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
4. is caring for an individual subject to an order (described in 1) or self-quarantine (described in 2);
5. is caring for his or her child whose school or place of care is closed (or child care provider is unavailable, now including summer camps or programs) due to COVID-19 related reasons; or
6. is experiencing any other substantially-similar condition specified by the U.S. Department of Health and Human Services.

Under the EPLSA, a full-time employee is eligible for up to 80 hours of EPSL, and a part-time employee is eligible for EPSL in an amount equal to the average number of hours the employee works over a two-week period, for any combination of the six reasons above.

When taking EPSL for any of the six qualifying reasons, the employee has the independent discretion to use their EPSL entitlement or any accrued paid leave provided by the employer under company policy or jurisdictional leave law where the reason for leave is consistent with the policy and/or law. However, the employee cannot be forced to use other available paid time prior to using their EPSL entitlement.

Expanded Family Medical Leave – Under the EFMLEA, an employee qualifies for Emergency Expanded Family and Medical Leave (EFML) for only one reason – if the employee is caring for his or her child whose school or place of care is closed (or child care provider, which now includes summer camps or programs, is unavailable) for reasons related to COVID-19. An eligible employee is entitled to up to 12 weeks of expanded family and medical leave; however, the first two weeks of EFML are unpaid unless EPSL or another applicable paid leave is used. Under the EFMLEA:

• Employees who have been on their covered employer’s payroll for at least 30 calendar days for a covered employer would be eligible for leave. An employee is considered to be employed for at least 30 calendar days if the employee had the employee on its payroll for the 30 calendar days immediately prior to the day the employee’s leave would begin.
• An employee is eligible for up to 12 total weeks of leave under EFMLA for the same reason as (5) above. The first 2 weeks of EFML are unpaid but eligible employees may receive pay under EPSL taken for the same reason.
• Employees taking leave under the EFMLEA must be permitted to elect to use any available paid time off including vacation, personal time, medical leave and/or sick leave during the first 10 days of their EFML, including EPSL. Following the initial 10 days of EFML, when the employee becomes eligible for EFML pay, employers and employees may agree, where Federal or state law permits, to have accrued paid leave supplement the two-thirds pay under the EFMLEA so that the employee receives the full amount of their normal pay.

For more information on FFCRA, the EPSLA, the EFMLEA, and on the payment(s) of these leaves, please review the Paid Leave Under the Families First Coronavirus Response Act, visit the DOL’s resource page, or explore the Paychex resources outlined below:

• Coronavirus (COVID-19) Help Center
• Guidance Updates on the Families First Coronavirus Response Act WORX article
• Families First Coronavirus Response Act: Funding, Tax Credits, and Paid Leave Laws Expanded to Respond to COVID-19 Pandemic WORX article
• The Family First Coronavirus Response Act (FFCRA)

What should I consider when deciding which of my employees will return to work? What happens when an employee tells you that they have an underlying health condition and prefer to stay at home?

Establishing and applying fact-based criteria that are consistent with your legitimate business needs and documenting the reasons for your decisions are important considerations when returning employees to work. Remember to also review the requirements in any written employment agreements, or collective bargaining agreement if you have unionized employees, to make sure that you’re remaining in compliance.

Employment decisions cannot be based on reasons that violate federal, state, or local anti-discrimination laws including, but not limited to, an employee’s membership in a protected class, because an employee has exercised their right to file a complaint against the company (e.g., complaints of unlawful discrimination or harassment), an employee has taken leave that is protected under federal, state, or local law, or because the employer believes that an employee will request leave when called back to work, including Emergency Paid Sick Leave (EPSL) or Emergency Family and Medical Leave Expansion Act (EFMLEA). If you have questions about these laws, or your selection process, consult with your HR professional and/or legal counsel.

An employee’s reason(s) for not returning may make them eligible for some type of leave required by federal, state, or local law, so it is important to engage with your employees to understand why they are refusing to return before taking any action. For example, an employee concerned about their own health condition may be entitled to a reasonable accommodation under the Americans with Disabilities Act (ADA) or similar state law, or an employee caring for a child because their child’s school or daycare is still closed may be entitled to EPSL or EFMLEA.

If your employees are raising reasonable COVID-19 safety concerns, their complaints or even their refusal to work may be protected under OSHA or the National Labor Relations Act, even if your workplace is not unionized. Discuss these issues with you HR professional and/or legal counsel before taking any business action, such as termination or imposing other discipline.

For more information, please watch our prerecorded webinars or review the following WORX articles:

• What to Do if Employees Refuse to Return to Work
• White House Issues Guidelines for Opening Up America Again during COVID-19 Pandemic

What are an employer’s obligations regarding the posting of the Families First Coronavirus Response Act (FFCRA) “Employees’ Rights” posters? Are there currently exemptions for businesses with under 50 employees?

Under the Families First Coronavirus Response Act, all covered employers are required to post the U.S. DOL’s model notice in a conspicuous place. Other ways employers can satisfy this requirement include:

• Emailing or direct mailing the notice
• Posting on an internal or external employee information website

Employers must also retain documents and information regarding FFCRA leave for a period of four years, regardless of whether the decision was made to grant or deny the request for leave.

For tax credit purposes, the DOL requires employers to maintain the following for four years:

• Documentation to show how the employer determined how much paid leave the employee was eligible for (e.g., records of work performed, telework, and paid leave credits)
• Documentation to show how the employer determined the amount of qualified health plan expenses that were allocated to wages
• Copies of any completed IRS Forms 7200 and 941 that the employer submitted to the IRS (or provided to a third-party payer to meet an employer’s employment tax obligations).

The DOL has also indicated that exemptions for small businesses may be addressed in forthcoming regulations and that until these regulations are passed, employers with less than 50 employees who believe that providing certain benefits under the FFCRA, such as child care, may jeopardize the ability of their business, should record/document why their business would need such an exemption.

Be sure to consult with an HR professional and/or your legal counsel to help you to ensure compliance with federal, state, or local law.

For more information on FFCRA, the EPSLA, and the EFMLEA, please review the Paid Leave Under the Families First Coronavirus Response Act, visit the DOL’s FFCRA resource page, or explore the Paychex resources outlined below:

• Guidance Updates on the Families First Coronavirus Response Act WORX article
• Families First Coronavirus Response Act: Funding, Tax Credits, and Paid Leave Laws Expanded to Respond to COVID-19 Pandemic WORX article

If an employee was required to take sick time to take a COVID-19 test in preparation for another medical procedure, does the employer need to compensate for the time off for the testing? Or is it okay to count this testing time as sick leave?

Due to the CDC and state/local authorities determining that COVID-19 is community spread and poses a direct threat, employers may now choose to administer COVID-19 testing to their employees before allowing them to return to work/re-enter the workplace. To do so, specific precautions must be taken and considerations under the ADA must be met.

However, if an employee had taken sick leave for a medical procedure, unrelated to COVID-19, and was required to undergo a COVID-19 test as preparation for said procedure (and not part of an employer’s testing protocol), then the employer would generally not need to compensate the employee for the time needed to conduct or travel for testing purposes beyond the employee’s sick leave entitlement. In other words, the employee would only receive compensation if that sick leave is paid pursuant to company policy or applicable leave law. Otherwise, it is not compensable time.

Before implementing or conducting COVID-19 testing in the workplace, be sure to consult with an HR professional and/or your legal counsel to ensure compliance with state or local law.

Additional Resources

Where can I find return to work information, safety guidelines, and regulatory updates?

As multiple states begin resuming business operations, Paychex remains dedicated to serving you, your employees, and your business. That’s why we’ve developed several online resources to help you remain up to date on your state's ever-evolving policies and executive orders related to the COVID-19 pandemic and return to work protocols.

Paychex Return to Work Resources:

• COVID-19 Resources by State

Paychex Safety/Legal Resources:

• Coronavirus (COVID-19) Help Center
• What to Do if Employees Refuse to Return to Work WORX article
• After the Pandemic: What’s Next for Your Employees WORX article
• White House Guidelines for Opening Up America Again during COVID-19 Pandemic WORX article
• Coronavirus at Work: Frequently Asked Questions WORX article
• Preventing and Managing Illness in the Workplace WORX article
• Download Your Business Continuity Plan (BCP) WORX Guide

Texas Resources:

• Texas Department of State Health Services (DSHS) COVID-19 Resource Page
• Texas Governor Greg Abbott’s Coronavirus Resources and Response Page
• Texas Division of Emergency Management COVID-19 Page
• Texas Municipal League (TML) COVID-19 Resource Page

Additional Resources:

• CDC Workplace Decision Tool
• OSHA Guidance on Preparing Workplaces for COVID-19
• FEMA News Release