Key Updates to the Employee Handbook for 2021

The start of the year is a good time for employers to review their manuals and ensure that policies are up to date with the latest developments in employment and labor law. Notably, the COVID-19 pandemic may have resulted in changes in employers’ policies around remote work, paid time off and others.

Here are the topics employment lawyers have said employers should review for 2021.

Telecommuting rules

Remote working has become a popular new practice in 2020, and employers should update manuals and policies to reflect this new practice and establish well-thought-out policies for remote workers in the coming year. “said Mark Phillips, lawyer with Reed Smith in Los Angeles.

National and local stay-at-home orders and other efforts to stop the spread of the coronavirus have led many workplaces to move their operations online in 2020. Some companies have decided to make work-from-home options long. term or permanent.

“I think working from home is here to stay,” said Bruce Sarchet, attorney at Littler in Sacramento.

Even employers who plan to resume in-person operations may need to revise their policies on providing reasonable accommodations under the Americans with Disabilities Act and other anti-discrimination laws.

Not all work can be done from home, but the Equal Employment Opportunity Commission (EEOC) has said that allowing an employee to work from home might be a reasonable accommodation if an employee’s disability prevents him from successfully performing the work on-site, unless the accommodation would cause undue hardship to the company.

“Historically, employers could say it was undue hardship, but it’s much harder to say now,” Sarchet noted. “So this is a place where policies and manuals could be strengthened.”

Leaving mandates

The management of leave is much more complicated today than it was in 2019, notes Sarchet.

In 2020, the federal Families First Coronavirus Response Act (FFCRA) provided for paid leave for certain workers with COVID-19 or whose schools or child care centers were closed due to the pandemic. Although FFCRA’s paid leave requirements expired at the end of 2020, a new coronavirus relief program extended the refundable tax credit on employers’ wages for sick and family leave paid until March 2021.

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

Employers can choose not to include temporary requirements in their manuals, Sarchet noted, but they should consider developing policies and procedures to manage compliance as long as the rules remain in effect.

Health and Safety Requirements

Employers should review guidelines from the Federal Occupational Safety and Health Administration (OSHA) and state and local agencies that aim to keep workers healthy and safe during the pandemic.

Existing OSHA standards cover the safety risks associated with the pandemic. More specifically, all employers must provide a work environment “free from recognized hazards which cause or are likely to cause death or serious physical damage”. OSHA has also issued COVID-19 specific guidelines to limit worker exposure to the coronavirus.

Employers should note that states may have more stringent standards. At least 14 states have adopted comprehensive COVID-19 worker safety protections, and some cities have also passed pandemic-related workplace safety ordinances, according to the National Employment Law Project.

Employers may see more retaliation claims from employees who raise health and safety concerns, said Rob Boonin, lawyer at Dykema in Detroit. “For this reason, compliance and reporting policies could be strengthened. “

Anti-discrimination policies

Title VII of the Civil Rights Act of 1964 prohibits companies with 15 or more employees from discriminating against workers on the basis of protected characteristics with respect to terms of employment, including hiring, firing, dismissal, training or discipline. Protected characteristics include color, national origin, race, religion and gender.

In 2020, the United States Supreme Court ruled that “sex” discrimination under Title VII includes sexual orientation and gender identity.

“While some state laws already prohibited discrimination in this sense, employers should review and revise anti-discrimination policies in their textbooks as appropriate,” Phillips said.

Drug testing programs

In the last election, voters in five states approved marijuana laws that will come into effect in 2021. Thirty-five states have now approved the use of medical marijuana, and 15 of those states and Washington, DC, have also approved recreational use.

Employers should be aware of the impact of each applicable law on the workplace. While no state requires employers to tolerate cannabis use or poisoning at work, many states protect patients registered with medical marijuana from employment discrimination. As a result, employers may wish to review their drug testing policies to ensure compliance with evolving drug testing laws.

Look ahead

The future is uncertain for employers in light of the ongoing pandemic and a new presidential administration.

Under President-elect Joe Biden, Phillips expects the US Department of Labor and the National Labor Relations Board to return to an approach similar to that of President Barack Obama’s administration and focus more on employee rights.

The new administration could increase the federal minimum wage and the wage threshold for workers who are exempt from paying overtime under the white-collar exemptions of the Fair Labor Standards Act.

“Employers will need to prepare for changes that they may have to adapt to, if not in the first year, in the first two,” Boonin said, noting that changes for federal contractors could happen quickly.

“These changes will likely serve as a snapshot of what other employers can anticipate,” he said.

Compliance Tips

While some changes to the manual will apply company-wide, others may be more appropriate in a state or local addendum, noted Michele Haydel Gehrke, a lawyer at Reed Smith in San Francisco.

Boonin said multi-state employers will continue to face challenges arising from the mosaic of state and local rules. Employers should therefore consider having their policies audited regularly to ensure that they comply with the law.

“States often apply new concepts in the workplace at a faster rate than the federal government,” he observed. Areas that have received a lot of attention lately include paid sick leave, paid family leave, limits on confidentiality of regulations, stricter definitions of who is exempt from overtime and what constitutes time. compensable work.

“Compliance, reporting and countering retaliation will also be an area employers will need to address more often, and good policies in these areas can be effective protections against liability,” said Boonin.

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