Employee Handbook Updates for 2021

By Howard B. Jackson

Perhaps some of you put updating the Employee Handbook on your list of New Year’s resolutions.  Some consider handling that task about as much fun as the other items on their resolution list.  

Be that as it may, the Handbook should be a good communication tool.  It should be accurate and up to date.  Like many tools it requires maintenance and repair from time to time.  With that in mind, below are some topics that may deserve attention in your Handbook this year.

Leave Laws and Policies.  Congress passed the Families First Coronavirus Response Act (FFCRA) that provided leave for various COVID-related reasons.  That law is currently set to expire at the end of March.  Given its temporary nature you may not want to have a Handbook policy on that subject.  But stay tuned.  There may be new legislature ahead related to this and other leave practices.

If you are a covered employer under the Family and Medical Leave Act (FMLA) it would be well to revisit that policy.  Many older policies are not compliant with the latest regulations.

In addition, many states and even municipalities have leave laws.  For example, several states have laws that provide leave to victims of domestic violence for matters such as visits with counsel or court dates.  Some states have laws that apply to volunteer firefighters and other part-time public servants.  In short, be sure that your policies are appropriate to all jurisdictions where you have employees.

Remote Work Arrangements.  This practice has become so common that it would be wise for most employers to have some guidance on the topic in their Handbook.  There is not a “one size fits all” version of such a policy.  The practice and approach can vary significantly depending on the nature of the workplace and the jobs in question.  

It would be reasonable to provide some information in the Handbook that in a general fashion addresses the organization’s stance toward remote work.  Some employers may encourage it strongly.  Others may be far less enthusiastic, and both for good reason.

The policy may also let employees know how they can broach the subject if it is of interest.  It’s always good for employees to understand how to communicate about their questions.

Although this is not a topic for discussion in the Handbook, employers should be aware that the U.S. Equal Employment Opportunity Commission (EEOC) and courts sometimes consider working remotely as a reasonable accommodation that an employer is obligated to provide under the Americans With Disabilities Act (ADA).  As with all things ADA, this decision depends on the specific facts of the situation.  This is simply a reminder that if an employee requests to work from home because of a limiting condition, the employer cannot dismiss the request out of hand.

Health and Safety.  This is an area that can often stand improvement in Handbooks generally.  This year has brought even more reason to do so.  In particular, President Biden has called upon the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to generate standards for safety in view of COVID-19.  In a January 21, 2021 Executive Order Biden ordered OSHA to issue revised guidance on COVID-19 safety, to determine whether temporary mandates such as use of masks are necessary, and to focus enforcement efforts on circumstances where large numbers of employees are at-risk or where an environment of retaliation is evident.  In addition to COVID-focused efforts the President has indicated a desire to double the number of OSHA investigators.  In short, expect greater regulation and greater enforcement efforts.

Drug Testing.  This is a developing area of the law.  In many states that have de-criminalized marijuana, employers may still test for it and exclude applicants from employment.  Or they may discharge an employee based on a positive test result.

But not everywhere.  For example, in New Jersey medical marijuana users are protected – a simple positive is not sufficient for discharge.  An employee or applicant who tests positive must be given an opportunity to provide a legitimate medical explanation for the result.

In Nevada a law became effective in 2020 that, with some exceptions such as for safety-sensitive positions, bars employers from testing applicants for marijuana.

This is another area where the employer must know the rules of the road in the states and municipalities where it has employees.

Harassment and Discrimination.  As we all know last year the U.S. Supreme Court ruled that Title VII’s prohibition against discrimination on the basis of sex includes discrimination on the basis of sexual orientation or identity.  Many older Handbook policies do not make that clear.

In addition, concerns over treatment based on race and sex in particular are very much in the public eye.  A wise employer will not only ensure that its policies properly address those subjects but further provide employees with simple and clear directions regarding how to raise an issue.

It is difficult to overstate the importance, and the value, of having a simple reporting procedure and effective training on how to use it.  Employers that communicate their policies well and that respond promptly and reasonably when issues arise create a more productive and enjoyable environment.  That inevitably leads to positive results such as greater production, less turnover and an overall healthier culture.

Retaliation and Whistleblower.  This is an area of increasing concern for employers.  And that is even more true for certain types of regulated industries.  Consider whether the industry you are in weighs in favor of having a separate policy in the Handbook that informs employees of the industry-specific requirements, who to contact in the organization as a resource for any questions, and how to communicate any related concerns that arise.

It is also critical to note in other places that retaliation against an employee for raising a legal concern is prohibited.  This prohibition applies for claims of discrimination, for taking protected leave, for requesting reasonable accommodation, and for many other actions an employee may take.  It is well to review the Handbook with an eye toward ensuring that retaliation concerns are properly addressed.

Protected Activity Under the National Labor Relations Act (NLRA).  The NLRA has long protected employees who engage in concerted activity for mutual aid and protection regarding their wages, hours and working conditions.  The interpretation of what language in a policy or handbook has an improper “chilling effect” on employees’ exercise of such rights changes over time depending on who is in charge at the National Labor Relations Board (“the Board”).  Expect the pendulum at the Board to swing back toward closer scrutiny of Handbook policies, such as those requiring respectful treatment, those that relate to social media activity, and those that relate to employee communications with third parties.

Conclusion.  This year and next are likely to see changes in labor and employment laws as the new administration implements new leaders and revises various laws and policies.  Revising the Handbook is one way to help your management team and workforce keep up.  Finding other ways to educate and inform your team will also be critical during these times.  We encourage you to select, plan for and use other communication tools for the benefit of your organization.