November 8, 2019
There Might Be a Little Dust on Your Handbook: Why Employers Should Review and Update Their Handbooks
by Curtis Moore, Fisher Phillips
While American singer-songwriter David Lee Murphy once wrote that there might be a little “Dust on the Bottle,” employers should be more concerned about the dust accumulating on their handbooks. With employment laws rapidly changing and evolving, it is important for employers to periodically review and revise their employee handbooks to ensure that their policies, practices and procedures comply with applicable federal, state and local laws.
While certain handbook policies may be unique to certain industries, this article focuses on four key employment policies often appearing in employee handbooks that should be periodically reviewed by employers to ensure they are up to date and compliant.
Equal Employment Opportunity (EEO) Policy
States, municipalities and other localities continue to expand equal employment opportunity protections. Many state and local laws provide varying protections to classes of employees not covered under federal law. For example, California and New York recently passed laws that protect employees from discrimination based on natural hairstyles and hair textures.
Moreover, while Ohio does not provide statewide protections for lesbian, gay, bisexual or transgendered persons, several Ohio municipalities do. Dayton, Cincinnati, Cleveland, Columbus, Youngstown and Toledo all have laws affording greater protections against employment discrimination for LGBT individuals. Many other, small municipalities within the state, and even certain Ohio counties, provide these protections as well.
Employers across the country should be aware of this patchwork of state and local legislation affording employees greater protections than federal law requires.
Paid Leave Policies
In recent years there has been an increasing push for employers to provide paid leave for their workers, but there is no federal requirement that private-sector employers provide paid sick leave as of now. As part of the push, at least 11 states and many more municipalities (including but not limited to Duluth, Minnesota, Los Angeles, Chicago and San Francisco) have adopted laws requiring employers to provide paid leave. Most of these laws contain penalties for employers who fail to implement policies related to paid sick leave, or fail to provide paid sick leave at the appropriate times. Many more jurisdictions have leave laws that are in limbo as the laws are contested within the court systems.
Given the present state of the law, employers in jurisdictions with paid-leave laws should scrutinize their handbooks and policies related to leave to ensure compliance. Employers in jurisdictions where paid-leave laws are being considered or contested should also be ready to revise their handbooks in the event such policies are implemented.
Drug and Alcohol Policy
While marijuana remains illegal at the federal level, many states have passed recreational or medicinal marijuana laws, or laws permitting the use of CBD oil. This is an evolving area of the law, and one that presents pitfalls for unwary employers. Given the variations among state laws, some employers may have an obligation to accommodate certain usage of medical marijuana or CBD oils. Other states permit the possession and use of marijuana for certain qualifying conditions but do not limit an employer’s ability to fire or discipline an employee for a positive drug screen related to marijuana.
This area presents myriad challenges for employers who are attempting to navigate state-specific laws while also maintaining a safe working environment for their employees. As such, employers must educate themselves on the state-specific laws governing their operations and should carefully craft policies relating to the use of, and testing for, alcohol, drugs and CBD oil. Generally, employers should ensure their handbooks clearly define terms related to marijuana and CBD oil. Outdated policies often have a general prohibition on “illegal drugs” and alcohol in the workplace – definitions that are becoming unworkable in an environment where marijuana enjoys legalized or partially legalized status in many states.
Employers also should have clearly defined policies against workplace violence, bullying and harassment. Many times, confrontations at work begin because of bullying and harassment. Such harassment and bulling may occur at work, or even on social media. Employers should clearly define behavior that is unacceptable, and clearly spell out the consequences for workplace violence, bullying and harassment. Likewise, employers should tailor their social media and conduct policies to reflect these concerns related to the prevention of escalating violence or disputes within the workplace.
Employers should also consider whether and to what extent they wish to provide policies and training to prepare employees or management in the event of an active shooter. Given recent events, some employers are choosing to codify policies and invite vendors or law enforcement into the workplace to train employees on how to handle a potentially life-threatening and stressful situation.
The above-referenced items are just a few areas employers should consider when reviewing handbooks. Employers should regularly review all policies in their handbooks with assistance from employment counsel to ensure that company policies are at all times compliant with applicable federal, state and local laws.
Curtis Moore is an associate based in the Fisher Phillips Columbus office focuses his practice on OSHA and MSHA inspections, employment litigation, traditional labor disputes, collective-bargaining sessions, and workers’ compensation matters. He can be reached at firstname.lastname@example.org.