By Audrey M. Calkins
As we enter a tumultuous spring headlined by the COVID-19 and SARS-CoV-2 pandemic (collectively “COVID-19”), employers may be turning to their policies, procedures, and employee handbooks to address their employees’ concerns about working during this time of uncertainty. As companies confront the challenges COVID-19 poses, they may also consider whether to revise their existing policies and procedures. This article aims to provide information you can use to ensure that your company is aware of federal and state guidance regarding current and future public health crises while also determining whether a handbook is right for you, and if so, deciding what terminology and which policies to use.
Does my company need a handbook or formal written policies?
Handbooks can demonstrate your company’s compliance with state and federal law, inform employees of workplace rules, and standardize enforcement and discipline. Handbooks easily disseminate information to employees, create objective rules and criteria for unbiased employment decisions, and ease compliance with various notice requirements. Additionally, handbooks can provide affirmative defenses under anti-discrimination/harassment laws and can be valuable in defending unemployment claims.
Nevertheless, handbooks can have some disadvantages—usually the flipside of their advantages. For example, employer decisions become more rigid with handbooks, and outdated handbooks can linger and haunt employers with obsolete policies or passé language. Failure to follow handbooks’ policies—even mistakenly or inadvertently—can open employers up to liability (or preclude summary judgment) in some cases. But overall, the benefits of handbooks likely outweigh their drawbacks.
Which policies should I consider including in the handbook?
This section addresses provisions that you can consider including in your company’s handbook: (1) the introduction, (2) acknowledgement form, (3) policies in every handbook, and (4) performance, discipline, and termination. Potential policies regarding COVID-19 or other future pandemics are discussed at the end of this article.
1. The Introduction
The introduction lays the foundation for your company to assert that its employees are at-will, which allows them to be employed for an indefinite term terminable by either the employee or the company. At-will employment allows the company to terminate employees for any reason (good cause, no cause, bad cause, mistake, etc.) as long as that reason is not unlawful.
The at-will employment relationship can change to an implied contractual relationship if the handbook issues an offer to an employee that the employee accepts by continuing to work after receiving the offer. Both a disclaimer disaffirming the creation of any implied contract and an affirmative statement of the company’s intent to provide only an at-will employment relationship are ways to avoid the creation of an implied contract. Employers should consider putting disclaimers in a different font size or color as well as reserving the right to modify, interpret, and deviate from their handbook policies. Additionally, companies should consider removing promissory statements (“We will do X.”) and replacing them with aspirational ones (“We hope to do X.”).
2. Acknowledgement Form
During litigation, employees frequently refuse to admit that they received or read provisions in their handbooks. Employers can combat these assertions by requiring employees to sign and date an acknowledgement form stating that employees received the handbook, acknowledged that they are at-will employees, and had the ongoing opportunity to read, access, understand, and ask questions about the handbook and its policies. Furthermore, employers should also consider including language regarding their right to modify the handbook.
3. Policies to consider including in every handbook
- anti-discrimination, anti-harassment, and equal employment opportunity policies
The handbook should identify only those protected classes to which the company decides to extend protection. At a minimum, the list of protected classes can include a catch-all clause of “any other class protected by applicable law.” Employers should consider including complaint-reporting procedures (with more than one avenue to report a complaint), creating a duty for all employees to report alleged violations of these policies, and strongly prohibiting retaliation against those who complain.
The anti-harassment policy can tie into the EEO policy by protecting all protected classes from alleged harassment and creating a rule that employees are responsible for reporting harassment. Companies can consider defining both types of harassment recognized under the law—quid pro quo and hostile work environment—and giving examples of each. This policy can also contribute to an affirmative defense to harassment claims under two Supreme Court cases, Faragher and Ellerth. These cases require employers to implement a meaningful policy, promptly respond to complaints, and take action that is anticipated to correct the alleged harassment.
- wage and hour policies
Regardless of whether employees are classified as exempt or non-exempt (or full-time or part-time), guidelines regarding these classifications can be included in handbooks as well. For example, companies can draft timekeeping requirements and procedures that both help protect against allegations of required off-the-clock work and provide (1) a complaint procedure for allegedly improper classification or deductions and (2) a disciplinary procedure for falsifying time records. Handbooks can also require pre-approval of overtime, provide that unauthorized overtime might result in discipline, and explain when overtime pay is triggered (and even how overtime will be awarded, allocated, calculated, or required).
- leave of absence policies
Policies regarding the FMLA (if your company has 50+ employees), the ADA and its reasonable accommodation obligation and associated interactive process, and other leaves of absence required under applicable state law are discussed briefly in the context of COVID-19 below.
4. Discipline and termination
Handbooks often provide disciplinary policies with steps progressing from verbal or written warnings through suspension and termination. Because some transgressions are more severe than others, employers should consider including a statement that discipline for bad acts could be subject to discipline “up to and including termination.” Additionally, companies should consider avoiding terms like “grounds,” “cause,” and “for cause;” “tenure;” “due process;” and “probationary period” because they could imply that a contractual employment relationship exists.
What about COVID-19?
Any article about employers’ policies in the current climate would be remiss if it omitted a discussion of COVID-19 and its effect on employers. COVID-19 may trigger companies’ leave-of-absence or work-from-home policies. Additionally, due to the WHO’s declaration of a pandemic and possible forthcoming declarations of a public health emergency from state and federal authorities, other applicable state or federal law may supersede company policies regarding vacation, time off, sick leave, attendance, FMLA, ADA, workplace safety, and workers’ compensation (and likely others). See https://ogletree.com/insights/2020-03-09/covid-19-faqs-on-federal-labor-and-employment-laws/.
In addition to work-from-home accommodations, proactive education of employees, exceptions to attendance policies, and advance determinations of whether time off will be paid or unpaid, employers should not forget their wage-and-hour obligations under the Fair Labor Standards Act and applicable state laws. The Department of Labor has published guidance addressing employee wage scenarios in different COVID-19 situations. See https://www.dol.gov/agencies/whd/flsa/pandemic; https://ogletree.com/insights/2020-03-10/dol-issues-covid-19-guidance-covering-flsa-obligations-when-dealing-with-coronavirus-and-other-emergencies/.
Additionally, OSHA has issued COVID-19-specific advisory guidance with recommended steps all employers can take to reduce employee risk of exposure to the virus. See https://www.osha.gov/Publications/OSHA3990.pdf; https://ogletree.com/insights/2020-03-10/osha-issues-new-guidance-on-preparing-workplaces-for-covid-19/. As they respond to the current COVID-19 crisis, companies can consider implementing or altering their crisis management plans in case of a future pandemic and related economic instability or a reduced workforce. See https://ogletree.com/insights/2020-02-25/have-you-gone-far-enough-with-a-coronavirus-crisis-management-plan/.
| State | COVID-19 Information Sources (as of March 11, 2020) |
| Alabama | http://www.alabamapublichealth.gov/infectiousdiseases/2019-coronavirus.html |
| Arkansas | https://www.healthy.arkansas.gov/programs-services/topics/novel-coronavirus |
| Georgia | https://dph.georgia.gov/novelcoronavirus |
| Florida | http://www.floridahealth.gov/diseases-and-conditions/COVID-19/covid19-toolkit.html |
| Kentucky | https://chfs.ky.gov/agencies/dph/pages/covid19.aspx |
| Louisiana | http://ldh.la.gov/index.cfm/page/3835 |
| Mississippi | https://msdh.ms.gov/msdhsite/_static/14,0,420.html |
| North Carolina | https://www.ncdhhs.gov/divisions/public-health/coronavirus-disease-2019-covid-19-response-north-carolina |
| Tennessee | https://www.tn.gov/health/cedep/ncov.html |
Audrey M. Calkins, Associate
Ogletree Deakins Memphis
[email protected]
www.ogletree.com