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Employee Handbooks – Are Updates for 2021 Needed?

It is always a good idea to review your Employee Handbook annually to ensure policies and practices are aligned and remain applicable.  With the Covid-19 pandemic shifting many practices, employers are encouraged to consider a few key areas and determine whether their Handbook should be updated going forward into 2021.

I. Remote-Work Rules

With many state and local stay-at-home orders along with other efforts to stop the spread of the coronavirus, many employers elected to set employees to work remotely from home-based offices. Some employers even elected to shift towards more work-from-home options in the long term or permanently. Even employers that plan to resume in-person operations may need to consider revising policies to include remote working as a potential option for reasonable accommodations, should an employee’s disability prevent him or her from successfully performing the job onsite under the Americans with Disabilities Act and other anti-discrimination laws.  After Covid-19, and the push of many employers to shift towards the ability to work remotely, employers will be hard-pressed to use the undue hardship rationale when an ADA or similar situation arises.

II. Leave Mandates

In 2020, the federal Families First Coronavirus Response Act (FFCRA) provided paid leave for certain workers who had COVID-19 or whose children’s schools or child care providers were closed due to the pandemic. Although FFCRA’s paid-leave requirements expired at the end of 2020, a new coronavirus relief package extended the refundable employer payroll tax credit for paid sick and family leave through March 2021. 

Additionally, some states, counties and cities have more-expansive leave mandates that will remain in effect for at least part of 2021. Some states, such as New York, passed permanent paid-leave laws in addition to temporary pandemic-related laws.

Any new, permanent paid-leave provisions should be communicated to Employees and possibly included in Handbooks; employers can also consider including temporary requirements in their handbooks and make that determination.  Whether or not to include changes in a Handbook is one thing, but employers should still consider developing/maintaining consistent policies and procedures for managing compliance while current rules remain effective.

III. Anti-Discrimination Policies

Title VII of the Civil Rights Act of 1964 prohibits businesses with at least 15 employees from discriminating against workers based on protected characteristics with respect to terms and conditions of employment, including: hiring, firing, laying off, training or disciplining. Protected characteristics include: color, national origin, race, religion and sex.  In 2020, the U.S. Supreme Court held that “sex” discrimination under Title VII includes sexual orientation and gender identity. While some states’ laws already prohibited discrimination along those lines, employers should take the time to review and revise, as appropriate and needed, any anti-discrimination policies.

IV. Drug-Testing Programs

With five new states approving marijuana laws taking effect in 2021, thirty-five states have now approved medical marijuana use, and 15 of those states and Washington, D.C., have also approved recreational use.  Employers need to be aware of how each applicable statute impacts them and their workplace. Although no state requires employers to tolerate on-the-job cannabis use or intoxication, many states protect registered medical marijuana patients from employment discrimination. For these reasons, employers may want to review their drug-testing policies to ensure compliance with evolving laws in this area.

V. Health and Safety Requirements

Employers are encouraged to review and stay current on federal OSHA (Occupational Safety and Health Administration), as well as state and local agency requirements, whose aim is to keep employees healthy and safe in the workplace. OSHA’s existing standards cover pandemic-related safety risks and require that employers provide a work environment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” If you are not aware, OSHA released COVID-19-specific guidelines for limiting workers’ exposure to the coronavirus.  Do become familiar with these guidelines.  It is worth noting, many states also have standards for their employers, and to date at least 14 states have enacted comprehensive worker safety programs addressing Covid-19 worker safety according to the National Employment Law Project.

Employers should be aware that they may see or hear of more claims of retaliation from employees who raise health and safety concerns and should do their part to ensure employer compliance in advance of issues.

Employers may consider updates and changes company-wide, while others may need to update with specific location addendums or memos. Multistate employers bear much responsibility as they continue to face challenges stemming from the patchwork of state and local rules. As many states continue to enact state specific legislation, employers should consider auditing their policies regularly for compliance, paying specific attention to state paid sick leaves, paid family leaves, limits on settlement confidentiality, more-stringent definitions of who is exempt from overtime and what constitutes compensable work time. 

Good policies assist employers with compliance, reporting and anti-retaliation issues which are expected to continue.

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