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E-Alerts

2014 Is Here! Time To Review And Update Your Employment Policies

[January 22, 2014] Although January is disappearing quickly, it is not too late to start the year off with a freshly updated employee handbook.  2013 brought important changes in federal and state employment laws that require every employer’s attention.  Implementing the following recommended revisions will ensure that your organization’s employee handbook is legally compliant and up to date with current best practices.

 

  • Policy Changes Related to Recent NLRB Decisions:  The National Labor Relations Board (“NLRB”) continues to aggressively enforce its interpretation of employee rights under Section 7 of the National Labor Relations Act.  As a result of NLRB decisions over the past year, all employers – both unionized and non-unionized – should carefully review and, if necessary, revise handbook policies relating to such subjects as confidential information, responding to media inquiries, and use of social media, in order to ensure that the language in such policies does not infringe on employees’ Section 7 rights.
  • Electronic Communications:  Whether or not employees are permitted to bring their own communication devices to work and/or to use personal devices (such as an iPhone) to check work email or connect to electronic communications systems at work, we recommend that all employers review current electronic communications policies and practices to ensure that the rules and expectations regarding use of personal and employer-provided communications systems are clearly spelled out.  Such policies should address, for instance, issues concerning privacy and monitoring, acceptable use of the communications systems, system security, and software.  We also recommend that employers consider whether adopting a dual-use device agreement makes sense for their organization.
  • Drug-Free Workplace Policy:  Currently, twenty states, including Massachusetts, Connecticut, Maine, New Hampshire, and Vermont, have legalized medical marijuana.  Employers in these states should update their drug-free workplace policies to ensure compliance with state law regarding medical marijuana  These laws generally eliminate state criminal and civil penalties for appropriate medical use of marijuana by patients with defined medical conditions.  Importantly, these laws do not require employers to accommodate the medical use of marijuana in the workplace.  Employers should, however, consider whether language in existing drug policies regarding prescription drugs should be revised in light of the medical marijuana laws.
  • FMLA:  Employers should carefully review and update their policies and practices to ensure compliance with the new Family and Medical Leave Act (“FMLA”) regulations that took effect on March 8, 2013.  The revised regulations have expanded military family leave, added protections for employees who take military leaves of absence, clarified eligibility requirements for airline flight crews, heightened requirements for intermittent leave, and extended protection to same-sex spouses.  Employers should also be sure to educate all managers, human resources personnel, and other employees who are involved in requests for FMLA leave to ensure that they understand the implications of the new regulations.
  • Health Insurance:  Given the complexities that currently exist with the repeal of the employer mandate in Massachusetts and the delay in the federal employer mandate, we recommend that employers review their health insurance policies to ensure compliance with all applicable legal requirements.  Effective in 2014, the Patient Protection and Affordable Care Act provides for the following:  (a) limitations on waiting periods for new employees; (b) for employers with at least 200 employees, automatic enrollment of new employees in a health care plan; (c) bans on annual limits on essential health benefits; (d) limitations on out-of-pocket costs; (e) limitations on deductibles in small-group markets; and (f) restrictions on wellness programs.  Employers should also prepare for new regulations to be effective in 2015 concerning the federal employer mandate.
  • Reasonable Accommodations Policies:  In 2013, 36% of charges filed with the Equal Employment Opportunity Commission (“EEOC”) related to claims under the Americans with Disabilities Act (“ADA”).  In addition, the EEOC obtained its largest jury verdict ever – $240 million – in a lawsuit under the ADA involving a claim that an Iowa turkey-processing plant subjected 32 intellectually disabled employees to unlawful harassment and discrimination.  We continue to recommend that all employers adopt a reasonable accommodations policy and provide education to managers and human resources personnel about this important area of the law.
  • Smoking Policies:  With the increased use of e-cigarettes, we encourage employers to consider whether their current smoking policies should be revised to address use of e-cigarettes in the workplace.  In addition, all employers are encouraged to keep a close eye on the Food and Drug Administration (“FDA”) as it considers restrictions on the sale and marketing of e-cigarettes.  The FDA’s actions will provide important information about whether e-cigarettes are considered to be harmful or not.
  • Paid Sick Leave:  In June 2013, New York City joined a growing list of cities requiring employers to offer paid sick leave.  Employers with employees in New York City should ensure compliance with this new requirement.  Paid sick leave bills have also been introduced in a number of other states and cities, so multi-state employers should closely monitor these developments.

In addition to the issues identified above, multi-state employers should be sure to address changes in the laws of all states in which they operate.

If you do revise your employee handbook, please don’t forget to retain a copy of the prior handbook.  Employee handbooks are often essential evidence in employment litigation, and we encourage all employers to keep prior versions of their handbook for several years so that they are available, if necessary, in litigation.

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If you need assistance with updating your organization’s employee handbook and related policies, or if you would like to learn more about our annual employee handbook audit, please do not hesitate to contact us.