The Time is Right for Updating Employee Handbooks
An employee handbook is an important document that outlines a company’s policies, rules, and procedures for its current and future employees. An employee handbook also provides a place for an employer to communicate its plans and expectations to employees, while capturing the values, culture and personality of the company. In addition, an employee handbook can be an effective risk management tool, provided it is followed on a consistent basis.
We generally encourage our clients to review and update their employee handbooks annually. As we begin the second quarter of 2021, this is an opportune time for employers to review their existing policies to ensure compliance with newly enacted laws and developing workplace standards. We have prepared this update to assist our clients in this regard.
Importance of Employee Handbooks
While it may be tempting to simply download a template from the internet, an employee handbook should be tailored to address the important and specific needs and concerns of the business. The handbook should be more than a list of “dos” and “don’ts.” It is also an opportunity to describe the history and mission of the company. The tone of the handbook should be consistent with the company’s philosophy as the handbook will be new employees’ first impression of the company. A well-drafted handbook can assist with employee onboarding and orientation and be a resource to employees by answering common questions, which can save management time. It can also be a resource to managers when making decisions and ensuring compliance with applicable laws.
Most importantly, the handbook should only include policies or procedures that the company will actually follow. A company’s failure to follow the rules in its own handbook can be more damaging than not having a handbook at all.
The handbook should be reviewed to ensure it remains consistent with the company’s management approach and style and, most importantly, complies with all newly enacted local, state, and federal laws. Outdated policies can lead to unwanted outcomes, such as causing confusion among employees and leading to disruptive, expensive litigation.
Impact of a New President & Administration
New presidential administrations can mean uncertain times for employers given the speculation regarding future shifts in workplace laws and regulations. While it is important to anticipate and consider upcoming changes, we recommend updating employee handbooks to reflect the current laws and regulations rather than waiting for expected changes to take effect. ABL will continue to monitor these developments and serve as a resource as needed.
Department of Labor (DOL) Rules
One of President Biden’s first executive actions was to ask all federal agencies to freeze proposed regulations and those with pending effective dates in order to give his leadership team time to review any new or pending rules. Last month, the Department of Labor (DOL) proposed withdrawing its 2020 independent contractor and joint employer rules.
The DOL has not replaced either rule with a new policy but is seeking public input on the proposal to withdraw the independent contractor and joint employer rules by April 12, 2021. Until new rules are implemented, businesses should ensure they are following the existing standards when determining whether to classify a worker as an employee or an independent contractor.
American Rescue Plan Act (ARPA)
Much attention has been given to the stimulus payments to individuals, federal enhancement of unemployment benefits, and creation of the Restaurant Revitalization Fund (RRF) and Shuttered Venue Operators (SVO) grant programs. The ARPA also added funding for the Emergency Injury Disaster Loan (EIDL), Payroll Protection Program (PPP) and Community Navigator Pilot Program. There are two elements of the ARPA that are applicable to employee handbooks.
Expanded EPSL and EFMLA tax credits
Effective April 1, 2021, the ARPA extended tax credits for employers with less than 500 employees who voluntarily provide Emergency Paid Sick Leave (EPSL) and Expanded Family Medical Leave (EFMLA) through September 30, 2021. The ARPA provides that EFMLA can now be used for any EPSL reason, which was also expanded to include time off for getting COVID-19 vaccines, recovering from any vaccine side effects, testing for COVID-19 and self-isolating while waiting for the results. The ARPA also increases the maximum per-employee tax credit employers can receive. Employers who provide EPSL and EFMLA leave should ensure their policies include these changes.
Cobra Subsidies
The ARPA also created federal COBRA subsidies. Employees and families enrolled in an employer’s group health plan may lose coverage if the employee’s work hours are reduced or employment is terminated. They can elect to continue coverage under COBRA, but the high premium cost often makes it difficult to afford this coverage. COBRA generally applies to group health plans of employers with more than twenty employees.
The ARPA provides a 100% COBRA subsidy if an employee’s work reduction or termination was involuntary, even if unrelated to the COVID-19 pandemic. The subsidy applies for up to six months of coverage from April 2021 through September 2021 (unless the individual’s maximum COBRA period expires earlier). Although it took effect April 1, 2021, employees who were terminated earlier but are still in their COBRA election window also are included.
For group plans subject to the federal COBRA rules, the employer will be required to pay the COBRA premium but then will be reimbursed through a refundable payroll tax credit. Group medical insurance plans for employers with fewer than twenty employees may be subject to a state’s mini-COBRA law. In that case, it appears the subsidy will be administered by the carrier. The carrier will pay the premium and then be reimbursed by the government.
Employers should work with their group health plan carriers and vendors on how to administer the new subsidy provision. Federal guidance is expected to be released by April 10th including model notices that plans can tailor for their use. Once they have been released, employers should update their employee handbooks accordingly.
Impact of Covid-19
COVID-19 has completely transformed the ways in which most organizations work. Not only have employers been forced to change their remote-work and paid-leave policies, but they have also been challenged to keep up with numerous new (and often changing) federal and state rules and regulations.
Employers have a general legal duty to provide a safe work environment, one that is free from recognized hazards likely to cause death or serious physical harm. (This is known as the “general duty clause.”) COVID-19 is a recognized hazard that falls under the general duty clause and therefore, employers are tasked with taking reasonable precautions to prevent the spread of COVID-19 in their workplace. This has been particularly challenging because to date, the Occupational Safety and Health Administration (OSHA) has not issued comprehensive, mandatory industry standards on COVID-19 prevention.
New OSHA guidance
On January 29, 2021, OSHA issued new guidelines and worker safety guidance for COVID-19 protection plans. Although qualified as being “advisory” and couched primarily in terms of “shoulds” rather than mandatory edicts, the guidance makes clear that employers cannot simply do nothing. In addition, employers must report to OSHA any work-related COVID-19 infections that result in hospitalizations or death.
The guidance reiterates many of the same precautions employers have already seen from the CDC and OSHA, including screening, enhanced sanitization of the workplace and social distancing. It also emphasizes the use of face coverings and recommends employers provide face coverings to employees at no cost.
We strongly recommend businesses create a written COVID-19 prevention plan that includes the suggested elements in the guidance. These include, but are not limited to: an assessment of workplace hazards and necessary personal protection equipment (PPE) for specific jobs; plans for handling outbreaks in the workplace; active encouragement of sick employees to stay home; physical distancing and handwashing; protocols for cleaning workspaces and/or offices; use of face coverings in accordance with CDC guidance; consideration of improving building ventilation system; reporting mechanisms for violations of the policy with non-retaliation assurances; and employee training. For more information, see the OSHA guidelines at https://www.osha.gov/coronavirus/safework.
Other policies
Other policies to consider updating include the following:
Attendance & Work Schedule: If work-from-home options will become a long-term or permanent solution, employers will need to develop policies governing such arrangements. These should include providing clear instruction regarding when employees are permitted to work from home, as well as whether they are required to request permission to do so and the rules to be followed when teleworking. Both formal and informal work-at-home arrangements must continue to adhere to the FLSA. Employers must be particularly careful with respect to remote non-exempt employees and should describe in detail strict procedures for recording time worked and regulating overtime hours. This section should also address any plans for a phased return to work.
Reasonable Accommodations: Employers who plan to resume in-person operations should anticipate some employees will not want to return to the office. With respect to employees who cite medical issues, employers should be prepared to engage in discussions about what constitutes a reasonable accommodation for each particular job. The Equal Employment Opportunity Commission (EEOC) has stated that allowing an employee to work from home could be a reasonable accommodation if an employee's disability prevents him or her from successfully performing the job onsite, unless the accommodation would cause an undue hardship for the business. After one year of accommodating work-from-home options, it will likely be more difficult for an employer to declare that an employee working from home creates an undue hardship. Employee handbooks should consider these situations and identify examples of undue hardships. More guidance on reasonable accommodations and remote work can be found on the EEOC’s website at https://www.eeoc.gov/facts/telework.html.
COVID-19 Vaccination Policy: Employers should consider developing a COVID-19 vaccination policy for employees. See ABL’s prior alert for more information on the subject, including whether employers may require vaccination as a condition of continued employment at https://www.abelbeanlaw.com/news/moving-forward-in-2021.
Dress code policy: Dress code policies can be tricky and should be based on legitimate, non-discriminatory business reasons. If a dress code policy states that women can wear certain styles while men cannot, a company runs the risk of alienating certain employees. A more general dress code policy enables companies to be as inclusive as possible with respect to employees’ appearance and decreases the likelihood of discrimination lawsuits. In addition, dress code policies should be updated to include any new requirements for wearing masks in the workplace.
Communication policy: Given the ways in which technology has changed and expanded modes of communication, updating a communication policy can be particularly challenging. Employers should focus on clearly identifying their expectations regarding email communication, social media, and cell phone use. However, employers should be particularly careful not to use blanket prohibitions or restrictions that will not be uniformly enforced. Inconsistent enforcement or disregarding written policies entirely can give rise to claims of illegal discrimination or favoritism. In addition, care must be taken to ensure that these policies do not run afoul of employees’ protected rights under the National Labor Relations Act (NLRA), which will likely be more strictly interpreted and enforced under the Biden administration.
Social Media: The use of social media continues to evolve with the emergence of new platforms. While social media can be a powerful marketing tool, employers should also recognize that it can be a significant drain on productivity. The best advice is to clarify policies on personal and company use of social media, including examples of what is considered acceptable as well as unacceptable. This will provide some recourse should an employee engage in inappropriate social media use. Employers should develop separate policies for those who handle corporate social media accounts.
Cell phone policy: It can be difficult to manage employees’ use of personal and work phones, as crossover between devices routinely occurs. Employers should establish a cell phone policy that fits their corporate culture while addressing how they want their employees to use their equipment. For example, if corporate culture calls for more control over the use of these devices, then employers should consider issuing cell phones through the company. For safety reasons, the cell phone policy should emphasize the importance of never texting while driving.
Data privacy & confidentiality: The increasing number of remote workers creates certain risks with respect to protecting confidential information. Employers should update their policies and provide appropriate training to ensure that employees are not exposing their companies to unnecessary danger through their use of electronic devices.
Sexual harassment: Public awareness of the incidence of workplace sexual harassment is higher than ever and sexual harassment policies should be updated. Be clear and concise regarding what qualifies as workplace sexual harassment, how employees should report sexual harassment, and the consequences of engaging in such behavior. Furthermore, consider making anti-harassment training mandatory for all employees. Not only will such training send the message that harassment is not tolerated in the workplace, but it will also provide valuable instruction to employees and may shield employers from liability, should a workplace incident occur.
Retaliation policy: In recent years, employer retaliation has become the most frequently filed charge with the EEOC. Employers should review their retaliation policy and make sure that it includes specific instructions for how employees should report workplace issues. Addressing problems in a standardized way is one way to reduce complaints.
When it comes to newly enacted laws and regulations as well as frequently changing guidance (e.g., with respect to telework policies), employers may want to consider preparing an interim addendum to an employee handbook rather than updating the entire handbook. In addition, a state or local addendum may be an appropriate mechanism for multistate employers to tackle the challenge of applying state or local rule changes that do not apply companywide.
Employers should remember that guidance from federal, state, local and public health authorities will continue to change as the COVID-19 pandemic evolves. It is imperative that employers follow the latest guidelines issued by the CDC, OSHA, and local and state public health agencies with respect to specific COVID-19 regulations. Just like last year, businesses need to remain flexible and prepared to adjust their policies. ABL will continue to monitor the latest developments and serve as a resource as needed.
Do you have questions regarding your employee handbook? Contact us today at (904) 944-4100.