By Beth P. Zoller, J.D., XpertHR Legal Editor
In 2015, there are a number of changes an employer should take into account when updating their employee handbook to make sure that it is legally compliant. Because an employee handbook is an ever-evolving document, it should be reviewed on an annual basis and updated based on the latest legal changes as well as trends in the law, culture and society. This is critical because it not only minimizes the risk of employer liability, but it also can bolster the employer’s professional and business reputation.
Here are 6 critical updates an employer should consider making for 2015:
1. Leave and Attendance Policies.
An employer needs to make sure their employee handbook is up to date with the most recent laws on employee leave and attendance. A significant number of states and municipalities now require an employer to provide employees with many different types of leave and time off from work including paid sick leave (i.e., California, Connecticut, District of Columbia), domestic violence leave (i.e., California, Massachusetts, Minnesota, New Jersey, Oregon), emergency responder leave and other types of leave. Additionally, in his State of the Union address, President Obama called upon Congress to pass a federal law mandating paid sick leave. Further, blanket policies imposing a maximum amount of leave time prior to automatic termination should be avoided because such policies fail to consider leave as a reasonable accommodation under federal laws such as the Americans with Disabilities Act (ADA). Flexible leave policies that do not punish workers for legitimate absences are advisable.
For templates of federal and state-specific leave and attendance policies, see XpertHR’s new Employee Handbook tool (registration required).
2. Equal Employment Opportunity Policies.
A protected class is a group of individuals who share a common characteristic and are legally protected from discrimination and harassment. The number of protected classes (groups of) continues to grow at both the federal, state and local level and an employer should make sure to incorporate this into their equal employment opportunities policies. With the continued expansion of civil rights, new and emerging protected classes such as lesbians, gays, bisexuals and transgender (LGBT) individuals, pregnant women, domestic violence victims, medical marijuana users, the homeless, interns and the unemployed have gained equal employment protections. Even if an employer operates in a state that does not recognize such protections, it may be best to provide them as this will foster a tolerant and diverse workforce and reinforce the notion that all employees will be evaluated based on merit, skill and qualifications.
For templates of federal and state-specific EEO policies, see XpertHR’s new Employee Handbook tool (registration required).
3. Reasonable Accommodation Policies.
An employee handbook should adequately convey the right to reasonable accommodations under Title VII, the Americans with Disabilities Act (ADA) and similar state and local laws. On the federal level, in 2014, the Equal Employment Opportunity Commission (EEOC) released two important guidance documents, one on accommodating religious garb and dress and another on pregnancy discrimination and accommodation. Additionally, a number of states such as Delaware, Illinois, Minnesota, New Jersey and West Virginia have enacted laws requiring employers to reasonably accommodate pregnant workers. The Supreme Court will soon issue a decision on the issue of pregnancy accommodations in Young v. UPS. An employer should also be aware that the Affordable Care Act as well as similar state and local laws require employers to provide nursing mothers with breastfeeding breaks. Be aware of these legal requirements regarding reasonable accommodations and make sure workplace policies comply.
For templates of federal and state-specific accommodation policies, see XpertHR’s new Employee Handbook tool (registration required).
4. Policies Affected by Same-Sex Marriage.
Workplace policies regarding discrimination, benefits and leaves with respect to same- sex marriage need to be updated. In the wake of United States v. Windsor, same-sex marriage is now legal under federal law. On the state level, over 2/3 of the states permit same-sex marriage or have same-sex marriage bans that have been struck down. Additionally, the Supreme Court is poised to revisit this issue in 2015. In light of these changes, depending on an employer’s location, same-sex spouses are now eligible for the same benefits and protections as opposite-sex spouses under employer health plans, retirement plans other benefits covered under the Employee Retirement Income Security Act (ERISA) as well as entitled to leave under the Family and Medical Leave Act (FMLA). Thus, an employer should make sure to review and revise all employment policies pertaining to discrimination, benefits, and leaves and make any necessary changes regarding same-sex spouses.
5. Distracted Driving Policies.
A firm policy should be in place regarding distracted driving as this will not only protect the health and safety of employees and third parties, but also minimize employer liability. In fact, a number of states (i.e., Hawaii, Illinois, Rhode Island) have passed laws specifically addressing distracted driving and banning drivers from using devices while behind the wheel. Similarly, the Occupational Safety and Health Administration (OSHA) has increased its enforcement related to workplace driving and encouraged employers to implement programs to keep drivers and third parties on the road safe from harm.
For templates of federal and state-specific distracted driving policies, see XpertHR’s new Employee Handbook tool (registration required).
6. Social Media and Bring Your Own Device (BYOD) Policies.
It is important to institute comprehensive policies regarding social media, BYOD and other emerging technologies in order to comply with the latest laws, protect employee privacy and reduce the risk of employer liability. To date, almost 20 states have enacted laws protecting the social media privacy of employees and applicants. By advising employees what constitutes permissible and impermissible conduct with regard to social media and BYOD, an employer can reduce the chance that its reputation will be damaged on social media, confidential information will be lost, or that it will face liability for co-worker harassment or overtime pay.
XpertHR offers templates of a Social Media policy and BYOD policy (registration required).
Conclusion
Although reviewing and updating an employee handbook can be an arduous task and a continual challenge requiring time and resources, it is a critical part of ensuring legal compliance and reducing the risk of employer liability.
ABOUT THE AUTHOR
Beth P. Zoller is the legal editor for the discrimination, affirmative action, harassment, retaliation, employee privacy, and employee handbooks/work rules/employee conduct content in the employee management section of XpertHR. Prior to joining XpertHR, Beth practiced law for more than 10 years representing employers with respect to employment discrimination and harassment claims, contractual disputes, restrictive covenant issues, family and medical leave, wage and hour disputes and a variety of other employment-related claims.
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