2023 is around the corner

It’s that time of year again. It’s time to review and update your company’s employee handbook.

Let’s face it, this is not the sexiest part of the role HR plays in an organization. Normally, you distribute your handbook when a new employee joins your organization. And then the handbooks typically collect dust until there is a need.   These handbooks are a very important source for compliance purposes.  But they also form the foundation of your day-to-day people management practices. In a dispute, what those policies say and how you have managed them are critical to a successful outcome.  

But an outdate handbook represents a potential liability.  This is especially true for employers that operate in multiple jurisdictions and/or if they have employees in multiple states or countries.  There are two areas where jurisdictions have been especially active recently – paid leave and regulations related to protected classes including the use of cannabis.    

Paid Leave

The past year saw increasing calls for paid leave laws to be enacted at both the state and local level. And new paid leave laws have come into effect in several states in 2022, like New Mexico’s Healthy Workplaces Act.  And Connecticut recently updated and somewhat liberalized it Paid Leave program.   In fact, at least 11 states and municipalities have enacted paid leave laws and others will probably follow their leads. Evaluate these factors when assessing whether your leave paid policies are in need of an update:

1. Pay attention to where employees live. Depending on the laws in those jurisdictions, consider a state or local supplement to the main handbook to accommodate the subtleties under greatly different paid leave laws, which may apply depending on how many employees you have in a particular state.
2. Clearly explain employee eligibility. Federal law requires employers provide FMLA leave after one year on the job and 1250 hours worked and state and local requirements may require leave after less time on the job (e.g., Wisconsin’s unpaid FMLA law only requires 1000 hours in the preceding 52 weeks). However, employers can also offer leave at any point before those requirements kick in. Ensure that your policy clearly explains when an employee may be eligible for various paid leaves and ensure that if such leave is protected by law, the policy is compliant.
3. Make sure your leave policies are not unintentionally discriminatory. For example, parental leave policies should apply equally to all types of new parents (for example adoptive parents), although there is an important distinction to be made between paid leave for recovering from childbirth and paid leave for bonding or other non-medical reasons.

Protected Classes

Over the last several years, state and local authorities have expanded definitions of protected classes.  At least 18 states (including Connecticut) and many municipalities have added protections for natural hair styles, for example. Moreover, medical, or recreational use of marijuana is now legal in 26 states. Several of those states such as Connecticut, Montana, Nevada, New Jersey, New York, and Rhode Island provide protections for employees that participate in off-duty recreational use of cannabis products and therefore limit an employer’s ability to refuse to hire or take adverse action against those workers.

While catch-all language to include additional protected characteristics, such as “and any other characteristic protected by federal, state, or local law,” is a common solution, adding the particular protected characteristic to the policy – and to harassment and discrimination training – can serve as a defense against liability.

At a minimum, every handbook should contain an Anti-harassment and Ani-Discrimination Policy that:

1. provides the state and local-specific characteristics that are protected from unlawful harassment and discrimination.
2. has a reporting procedure providing multiple reporting channels for individuals to make complaints about harassment; and
3. emphasizes the employer’s commitment to maintaining a workplace free from such unlawful conduct.