Can I be fired for refusing to come to work because of the COVID-19 pandemic? Will I lose unemployment benefits if my employer opens back up?

Employment at Will

It is possible that an employer could fire a worker for not coming to work due to the COVID-19 pandemic, according to an employment lawyer quoted in an article from the news source KXAN on how the COVID-19 pandemic is affecting employment. Texas is what’s known as an “at-will state”, which means that an employer can terminate an employee at any time. The Texas Workforce Commission has an explanation of "employment at will" on their website:

The basic rule of Texas employment law is employment at will, which applies to all phases of the employment relationship - it means that absent a statute or an express agreement (such as an employment contract) to the contrary, either party in an employment relationship may modify any of the terms or conditions of employment, or terminate the relationship altogether, for any reason, or no particular reason at all, with or without advance notice.

However, this does not mean that an employer is not required to take steps to protect their workers’ health and safety at all times, including during a pandemic. Texas RioGrande Legal Aid has helpful information on employees’ rights related to basic health and safety standards within the context of the pandemic available on their website.

Unsafe Working Conditions

Workers have the right to refuse dangerous work, according to OSHA (the Occupational Safety and Health Administration, the federal agency in charge of overseeing federal health and safety laws):

Your right to refuse to do a task is protected if all of the following conditions are met:

• Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so;
• You refused to work in "good faith." This means that you must genuinely believe that an imminent danger exists; and
• A reasonable person would agree that there is a real danger of death or serious injury; and
• There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

You should take the following steps:

• Ask your employer to correct the hazard, or to assign other work;
• Tell your employer that you won't perform the work unless and until the hazard is corrected; and
• Remain at the worksite until ordered to leave by your employer.

If a worker believes they are working under unsafe or unhealthy standards, they can let their employer know about the conditions. Additionally, any employee (including temporary workers, applicants, and former employees) may raise a confidential complaint with OSHA. Complaints can be filed over the phone at 800-321-OSHA (800-321-6742), by fax, or through their website. 

Texas workers can also make a complaint to the Texas Workforce Commission’s Workers’ Compensation Division. The Texas Department of Insurance Division of Workers’ Compensation also has a Safety Violations Hotline that is bilingual, confidential, available 24 hours, and toll-free at 1-800-452-9595.

Retaliation & Wrongful Discharge

If a worker is retaliated against for reporting health and safety violations, they can also raise a retaliation complaint with OSHA within 30 days of the retaliation happening.  

If a worker is retaliated against after they reported health and safety violations through the TDI-DWC safety hotline, it's possible that they could fight their termination through a lawsuit. This page from Texas Workforce Commission includes information on possible remedies for wrongful discharge and discusses statutory and common law exceptions to the "employment at will" doctrine. It'd be best to talk to an attorney for legal advice on what to do, so please see the library's Where to Go for Help page for links to lawyer referral services and organizations that provide free legal clinics, online chat services, and legal hotlines.

The library also has materials that discuss labor and employment laws more thoroughly available remotely through our digital collection.

Unemployment Benefits

The Texas Workforce Commission has issued new guidelines regarding eligibility for unemployment benefits for claimants who choose not to return to work because of the COVID-19 pandemic. Under this guidance, Texans can continue to receive unemployment benefits throughout the COVID-19 response if they choose not to return to work for certain reasons as specified by TWC. The reasons for refusal identified by TWF are as follows:

• At High risk: People 65 years or older are at a higher risk for getting very sick from COVID-19.
• Household member at high risk: People 65 years or older are at a higher risk of getting very sick from COVID-19.
• 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 is 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 closed and no alternatives are available.

Any other situation will be subject to a case by case review by TWC based on individual circumstances.

If you have questions or concerns about your particular situation, it’d be best to speak with an attorney for legal advice on what to do. If you would like to talk with an attorney for advice, links to lawyer referral services and organizations that provide free legal clinics, online chat services, and legal hotlines are available on our Where to Go for Help page.

You can also find more information on employment rights and the COVID-19 pandemic on the Employment page of our COVID-19 & Texas Law research guide.