KBS Reference Desk: Unemployment During Covid-19

Q:        My district has moved all instruction to virtual learning platforms due to the COVID-19 pandemic. As a result, we are not currently using substitute teachers. Someone who previously accepted substitute teaching assignments with our district filed for unemployment benefits yesterday. Will substitutes who will not get substitute teaching assignments in light of the COVID-19 pandemic generally qualify for unemployment benefits?

A:        Most likely yes. If your district is not paying substitute teachers during altered instructional operations arising from the COVID-19 pandemic and is not providing substitutes opportunities to accept assignments, then they will likely qualify for unemployment benefits.

            Pursuant to the Texas Unemployment Compensation Act (“TUCA”), Chapter 201 of the Texas Labor Code, unemployment benefits are part of an employer-paid program that provides temporary, partial income replacement to qualified individuals who are unemployed through no fault of their own. Unemployment benefits are funded by employers paying unemployment insurance taxes and reimbursements that support unemployment benefit payments to claimants. See Tex. Lab. Code § 204.002. The Texas Workforce Commission (“TWC”) is the state agency charged with reviewing a claimant’s eligibility to receive unemployment benefits. See Tex. Lab. Code § 201.011(8).

            On March 27, 2020, the United States Congress passed The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, Public Law Number 113-136, which is a two-trillion-dollar stimulus package aimed at keeping the nation’s economy afloat during the COVID-19 crisis. A major component of the CARES Act is an expansion of state-provided unemployment benefits that entitles unemployment claimants to an additional $600 per week of benefits if they lost compensation due to a COVID-19-related reason. See CARES Act, 116th Cong. § 2101 et seq.

            Ordinarily, a district can shield itself from paying unemployment claims to substitutes by issuing these individuals letters of reasonable assurance. Districts generally send these letters to substitutes and other seasonal employees to provide reasonable assurance that they will be called to work again after a district’s scheduled break of a week or more (such as the winter holiday or summer break). A person is not qualified for unemployment benefits during a school district’s scheduled break if he or she received a letter of reasonable assurance. See Tex. Lab. Code § 207.041. A school district’s closure or move to altered operations due to the COVID-19 pandemic, however, is not considered a “scheduled break” and, therefore, providing a substitute a letter of reasonable assurance will not protect a district from paying unemployment benefits to substitutes who are not working due to COVID-19.

The question becomes, then, what amount of unemployment compensation a substitute can expect to receive. Unemployment compensation claim amounts are based on an employee’s earnings over the past 18 months. See Tex. Lab. Code §  201.011(1). Because substitutes have variable work schedules, and because most substitutes are scheduled to work fewer than 30 hours per week, the financial burden on the district when a substitute seeks unemployment benefits will likely be limited.

Information regarding your district’s procedures regarding unemployment benefits may be found in policy CRF. Please contact your local school attorney if you seek additional information or have specific questions.

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