Know Your Employment Rights* During the Coronavirus

(COVID-19) Pandemic

Initial Publication Date: March 30, 2020

Information provided by: Disability Rights Texas, Equal Justice Center, Lone
Star Legal Aid, and Workers Defense Project

*These rights generally only apply to employees and not to properly-

classified independent contractors. These rights still apply to you if your
employer incorrectly classifies you as an independent contractor when you
should be an employee. The information in this fact sheet is not legal
advice. If you believe your rights have been violated and would like to
consult with an attorney, you should consult an attorney. Nonprofit law firms
like Disability Rights Texas (offices throughout Texas), the Equal Justice
Center (offices in Austin, Dallas, Houston, and San Antonio), Lone Star
Legal Aid (office in East, Southeast, and Northeast Texas), Texas
RioGrande Legal Aid (offices throughout Central, South, and Southwest
Texas), Workers Defense Project (offices in Austin, Dallas, and Houston)
provide free legal services to workers.

To find a private attorney, visit the Texas Employment Lawyers Association.

As an employee in Texas, you generally have the right to:

1) Work in a safe workplace
2) Be free of discrimination in the workplace
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3) Take unpaid leave to care for yourself or a family member
4) Take paid Emergency FMLA leave if you cannot work because your
child’s school is closed or child care provider is unavailable due to
COVID-19
5) Take paid leave if you or a family member is sick with, or severely
impacted by, COVID-19
6) Be paid for the work you have performed
7) Be paid in a timely manner and, if you lost your employment, to receive
your last paycheck
8) Advocate for safer and better working conditions for you and your
coworkers
9) Be free of retaliation
10) Receive unemployment benefits

These rights are explained in more detail below and in the pages that follow.

1. To work in a safe workplace.

What is the law?
The Occupational Safety and Health Administration (OSHA) sets standards
requiring employers to assess hazards that may endanger their employees,
evaluate the risk of exposure, and ensure their employees are given and
use procedures and tools to prevent those risks. While there is no specific
OSHA standard covering COVID-19 exposure, some OSHA requirements
may apply to your employer depending on the type of work you do and your
level of risk. All employers have the general duty under the law to furnish to
each employee “employment and a place of employment, which are free
from recognized hazards that are causing or are likely to cause death or
serious physical harm.”
How does this law protect me?
Under OSHA guidelines, your employer should assess its employees’
exposure to people and materials that could be infected with COVID-19.
Employers should develop and implement a plan to encourage sick workers
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to stay at home; minimize contact among employees, clients, and
customers (implementing telework if feasible); and provide employees with
protective equipment and training on COVID-19 risk factors and protective
behaviors. Depending on your type of work, your employer may be required
to provide gloves, eye and face protection, respiratory protection, and other
personal protective equipment to prevent the spread of COVID-19.
What if my rights have been violated?
Employees who believe their working conditions are unsafe or that their
employer violated a safety or health standard can file a complaint with their
local OSHA Area Office as soon as possible and ask for an inspection or an
investigation. You have a right not to be retaliated against (see #9 for more
information) for reporting safety hazards and have 30 days to file a
complaint about retaliation. You can request that OSHA not reveal your
name to your employer, and can also file complaints anonymously. Submit a
complaint online or call your OSHA Area Office at 1-800-321-OSHA.

2. To be free of discrimination in the workplace.

What is the law?
Several federal laws prohibit workplace discrimination. These laws apply to
most private employers that have 15 or more employees, or that receive
federal money. They also apply to most governmental employers,
employment agencies, labor organizations, and training programs. The
Americans with Disabilities Act (ADA) protects people from disability
discrimination at work. Employers may violate the ADA if they fire someone,
or fail to hire them, because of their disability. Employers may also violate
the ADA if they fail to make a reasonable accommodation for a worker with
a disability who needs one. Finally, it may be illegal for an employer to
discriminate against a worker because the person has a family member,
friend, or other associate who has a disability. Title VII of the Civil Rights Act
(Title VII) protects employees from discrimination on the basis of - among
other characteristics - race and national origin (e.g., being Asian, having
parents who immigrated from an effected country). The Age Discrimination
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in Employment Act (ADEA) protects employees over 40 from discrimination
based on age. The ADEA and Title VII also prohibit discrimination on the
basis of a worker's association with someone who is protected by those
laws.
How do these laws protect me?
Covered employers are required to make reasonable accommodations to
help employees with disabilities do their job and equally enjoy benefits of
the job. But employers are not required to make accommodations that
impose an undue burden (e.g., cost prohibitive or not workable). A
reasonable accommodation may include allowing an employee to
telecommute because the person has a disability that compromises their
immune system or a disability that makes it more likely the person will suffer
severe complications from COVID-19. To request a reasonable
accommodation, you should use your employer’s approved process. If your
employer does not have a policy in place, you should write an email or letter
to your supervisor and HR representative requesting a reasonable
accommodation. Employees should ask for a reasonable accommodation
as soon as possible. The ADA, Title VII, and ADEA protect employees from
having to work in an environment with severe discriminatory harassment
(e.g., frequent inappropriate comments or jokes from employees or
customers about your national origin). They also prevent employers from
taking negative actions against you because of your disability, age, race, or
national origin (e.g., cutting your hours because you are over 40, changing
your job duties because “customers do not want to be served by Asians”).
What if my rights have been violated?
You can file a joint charge of discrimination with the Equal Employment
Opportunity Commission (EEOC) and the Texas Workforce Commission
Civil Rights Division (TWC-CRD) with or without an attorney. To file a
charge of discrimination you can call the EEOC at 1-800-669-4000, and you
can call the TWC-CRD at 1-888-452-4778. If you call the EEOC or TWC-
CRD, make it clear that you want to file a joint charge of discrimination. If
you decide to file a joint charge of discrimination or to file only with the
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TWC, you must file the charge within 180 days of the discriminatory act. If
you only file with the EEOC, you have 300 days to file your charge.

3. To take unpaid leave to care for yourself or your family member.

What is the law?
The Family Medical Leave Act (FMLA) guarantees certain employees up to
12 weeks of unpaid leave to care for themselves when they have a serious
health condition or for certain family members (a spouse, a parent, or a
child, including a biological, adopted, or foster child, a stepchild, a legal
ward, or the child of a person standing in loco parentis) with a serious health
condition. COVID-19 could be considered a serious health condition if it
requires inpatient treatment (i.e., being hospitalized overnight) or causes
incapacity (inability to work, attend school, or perform other regular daily
activities) of three full days and requires continuing treatment by a
healthcare provider. To qualify, an employee must work for an employer
with 50 or more employees and have worked for that employer for at least
12 months. The 12 months of work do not need to be consecutive (i.e., it
can be seasonal), but an employee must have worked at least 1,250 hours
(i.e., about 24 hours per week) in the 12 months before they request leave.
How does this law protect me?
Employees who qualify for FMLA can use up to 12 weeks of unpaid leave
(consecutively or in smaller increments) to care for themselves or certain
family members. Employers must maintain an employee’s health insurance
while the employee is on FMLA leave and must return the employee to the
same job or one nearly identical to it when the employee returns from FMLA
leave. Employees must request FMLA leave from their employers as soon
as possible. An employer must tell you within 5 business days whether you
qualify for FMLA leave. The employer may require you to fill out some forms
and may ask for medical certification from a healthcare provider.

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What if my rights have been violated?
If you believe your rights under the FMLA have been denied, contact the
Wage and Hour Division of the U.S. Department of Labor. There are
numerous offices in Texas and each has its own phone number.

4. To take paid Emergency FMLA leave if you cannot work because

your child’s school is closed or child care provider is unavailable due
to COVID-19.
What is the law?
The Emergency Family Medical Leave Expansion Act (EFMLEA), which
went into effect on March 18, expands the protections of the FMLA
(described on page 5 in number 3). It covers employees who are unable to
work (or telework) due to a need for leave to care for a child under 18 years
of age because the child’s school or place of care has been closed, or the
child’s care provider is unavailable, because of COVID-19. Most employers
with fewer than 500 employees are required to provide EFMLA leave to any
employee who has worked for them for at least 30 calendar days. Certain
health care providers and emergency responders may not be eligible for
EFMLA leave. Employers with fewer than 50 employees may apply to the
Department of Labor for a hardship exemption, which could relieve them of
the responsibility to provide EFMLA leave.
How does this law protect me?
Employees who qualify for EFMLA leave can take up to 12 weeks of job-
protected leave. (This is the same 12 weeks available under regular FMLA,
not an additional 12 weeks.) The first 10 days of EFMLA leave can be
unpaid, although you can choose to use previously earned paid leave. For
the next 10 weeks, your employer must pay you at least two-thirds of your
regular hourly rate, up to $200/day or $10,000 in total. Your employer
cannot fire you, discipline you, or otherwise retaliate against you for
requesting or taking EFMLA leave. Employers who have 50 to 500
employees must comply with the reinstatement requirements of the FMLA.
However, if your employer has fewer than 25 employees, they may not have
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to return you to your job if your position no longer exists as a result of the
pandemic.
What if my rights have been violated?
If you believe your rights under the EFMLA have been violated, contact the
Wage and Hour Division of the U.S. Department of Labor. There are
numerous offices in Texas and each has its own phone number.

5. To take paid leave if you or a family member is sick with, or severely

impacted by, COVID-19.
What is the law?
The Emergency Paid Sick Leave Act (EPSA), which went into effect on
March 18, requires all employers with fewer than 500 employees to provide
10 days of paid leave to employees who fall into one of the following
categories:
• Employees subject to a federal, state, or local quarantine or isolation
order related to COVID-19
• Employees who have been advised by a health care provider to self-
quarantine due to concerns related to COVID-19
• Employees who are experiencing symptoms of COVID-19 and seeking
a medical diagnosis
• Employees who are caring for someone who is subject to a quarantine
or isolation order or has been advised to self-isolate
• Employees who are caring for a son or daughter if the school or place
of care of the son or daughter has been closed, or the child care
provider of the son or daughter is unavailable, due to COVID-19
precautions
• Employees who are experiencing any other substantially similar
condition specified by the Secretary of Health and Human Services in
consultation with the Secretary of the Treasury and the Secretary of
Labor
Certain health care providers and emergency responders may not be
eligible for paid leave. Employers with fewer than 50 employees may apply
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to the Department of Labor for a hardship exemption, which could relieve
them of the responsibility to provide paid leave.
How does this law protect me?
Under this law, eligible full-time employees are entitled to 80 hours of
emergency leave paid at their regular hourly rate (up to a maximum of
$511/day for a total of $5,110 if you fall into one of the first three categories
above, or a maximum of $200/day for a total of $2,000 if you fall into one of
the latter three categories above). Eligible part-time employees are entitled
to a number of hours of emergency leave based on their average worked
and their regular pay, subject to the same daily maximums. Your employer
cannot require you to take other paid or unpaid leave instead of paid
emergency leave. Your employer cannot fire you, discipline you, or
otherwise retaliate against you for requesting or taking emergency paid
leave.
What if my rights have been violated?
If you believe your rights under the EPSA have been violated, contact the
Wage and Hour Division of the U.S. Department of Labor. There are
numerous offices in Texas and each has its own phone number.

6. To be paid for the work that you have performed.

What is the law?
The Fair Labor Standards Act (FLSA) and the Texas Minimum Wage Act
(TMWA) generally require employers to pay their employees no less than
$7.25 per hour for all hours worked. In addition, the FLSA requires covered
employers (most employers who do at least $500,000 per year in business)
to pay non-exempt employees one and a half times their regular hourly rate
for all hours worked beyond 40 in a workweek.
How do these laws protect me?
These laws entitle you to wages for the work you have actually performed.
This includes time that you are required to be at a jobsite waiting for
assignment, time spent travelling between jobsites, and time spent setting
up or closing down your workstation. The FLSA also entitles many workers
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to overtime pay for hours worked beyond 40 in a workweek, and prohibits
employers from retaliating against employees for complaining about
violations of the law. These protections apply regardless of your immigration
status.
What if my rights have been violated?
The FLSA applies to most employers who do at least $500,000 per year in
business and some employers whose employees produce goods for
interstate sale or are engaged in interstate commerce. The TMWA applies
to most employers not covered by the FLSA. If you believe your rights under
the FLSA have been violated, contact the Wage and Hour Division of the
U.S. Department of Labor. There are numerous offices in Texas and each
has its own phone number. If you believe your rights under the TMWA have
been violated, file a wage claim with the Texas Workforce Commission
using their online filing system.

7. To be paid in a timely manner and, if you lost your employment, to

receive your last paycheck.
What is the law?
The Texas Payday Law covers all Texas business entities, regardless of
size, except for public employers such as the federal government, the state,
or city and municipal governments. It requires employers to pay their
employees at least twice per month, although employees who are exempt
from the overtime provisions of the FLSA may be paid once per month, and
to timely pay earned wages to employees who are laid off, are fired, or quit.
How does this law protect me?
This law entitles you to regular payment of wages you have earned. If you
quit, retire, resign, or otherwise leave employment voluntarily, the Payday
Law requires your employer to deliver your final wages on the next
regularly-scheduled payday following the effective date of resignation. If you
are “discharged” (laid off, fired, or otherwise involuntarily separated from
employment), the Payday Law requires your employer to deliver your final
wages within six calendar days of discharge. Employees are only entitled to
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payment for fringe benefits like vacation days, sick leave, or severance pay
if their employer provided for those benefits in a written policy or agreement.
These protections apply regardless of your immigration status.
What if my rights have been violated?
If you believe your rights under the Payday Law have been violated, file a
wage claim with the Texas Workforce Commission using their online filing
system.

8. To advocate for safer and better working conditions for you and
your coworkers.
What is the law?
Section 7 of the National Labor Relations Act (NLRA) gives employees,
even those not in unions, the right to engage in “concerted activities for the
purposes of collective bargaining or other mutual aid or protection.”
Because the law refers to mutual aid or protection, an employee must
advocate for herself and some or all of her coworkers, not just herself, to be
protected. It is even better if a group of employees acts together.
Agricultural workers, domestic workers, and government employees are not
protected by the NLRA, but they can still form a union and organize their
workplace. Workers should be specific about what conditions they are
organizing around (e.g., safer working conditions, receiving owed wages).
Their demands and actions may be protected from retaliation by other
workers’ rights laws, such as OSHA and state and federal wage payment
laws.
How does this law protect me?
This law prohibits employers from retaliating (see #9 below) against
employees who engage in concerted activity like advocating for better
working conditions (e.g., being provided gloves and masks, increased
sanitation), benefits (paid sick leave, the right to be re-hired after being laid
off), and other terms and conditions of employment. Other examples of
concerted activities that are protected by the NLRA include refusing to work,

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talking to coworkers about your wages, and reporting working conditions or
workplace problems to the media.
What if my rights have been violated?
If you think your employer has violated the NLRA, you have 6 months to file
a charge with your Regional Office of the National Labor Relations Board
(NLRB), the government agency responsible for enforcing the NLRA. The
Texas offices are located in Fort Worth (817-978-2921), Houston (281-228-
5600), and San Antonio (210-472-6140). Call them for more information and
for help filing a charge.

9. To be free of retaliation.
All of the laws listed above have provisions that prohibit employers from
retaliating against employees for exercising their rights. Examples of
retaliation include termination, discipline, cut in pay or hours, demotion,
assignment of less desirable duties, or calling the police or immigration
authorities. Threatening to do any of these things can also be unlawful
retaliation.

10. To receive unemployment insurance benefits.

What is the law?
Unemployment insurance (UI) benefits provide temporary financial
assistance to workers who are unemployed through no fault of their own. To
qualify for regular unemployment benefits in Texas, you must have earned a
minimum amount of wages from work in Texas during the past 12 to 18
months. You will also need your last employer’s business name and
address, dates you worked for your last employer, and your normal weekly
hours and pay rate. Noncitizens can apply for regular UI benefits only if they
have valid employment authorization both at the time they earned wages
over the previous 12 to 18 months and for the period continuing forward
when they are unemployed. Noncitizens must provide their Alien
Registration Number. Individuals who do not qualify for state unemployment
insurance benefits, such as self-employed workers, gig workers,
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independent contractors, part-time workers, workers who do not have a long
enough work history to qualify for regular unemployment benefits, and
workers who have already used up their benefits, may be eligible for
benefits through the recently created Pandemic Unemployment Assistance
(PUA) program.
How does this law protect me?
If (1) your employer temporarily ceases operations due to COVID-19,
preventing employees from coming to work, (2) your employer reduces your
hours due to COVID-19, (3) you are quarantined but expect to return to
work after the quarantine is over, or (4) you have left employment due to a
risk of exposure or infection or to care for a family member, you could be
eligible for UI benefits. If you are a gig worker, like an Uber or Lyft driver,
and your income has decreased because of COVID-19, you could be
eligible for PUA benefits. Your application for regular UI benefits must be
rejected before you will be considered for PUA benefits. Apply can online at
any time using Unemployment Benefits Services or by calling the Texas
Workforce Commission’s (TWC) Tele-Center at 800-939-6631 from 8am-
6pm Mondays through Fridays. Under normal circumstances, payment for
the first week of your claim is deferred until your benefits end, and you are
required to report efforts you have made to find a new job. However, the
wait time and job search requirements have been waived because of
COVID-19.
What if my rights have been violated?
If you receive a Determination Notice from the TWC denying you
unemployment benefits, you can appeal that decision in writing within 14
calendar days from the date on the Determination Notice.

This publication is based upon the law at the time it was written. The law changes
frequently and is subject to various interpretations by different courts. Future changes in
the law may make some information in this handout inaccurate.

These handouts are not intended to, and do not replace an attorney’s advice or assistance
based on your particular situation.
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