As HR leaders plan for 2018, one area that is essential to review and revamp is the employee handbook. With ever-changing regulations, trends and employee expectations, an outdated policy manual can leave companies vulnerable to miscommunication — and costly litigation.

Looking back on events from this year, experts suggest employers pay attention to these top six areas:

#1: Disaster preparation

Multiple hurricanes pounding the U.S. this year highlight the necessity of a detailed disaster plan, says John Meyers, partner at Barnes & Thornburg. If a disaster occurs, organizations need to know how they will handle staffing issues and leave, he says.

That need was demonstrated during Hurricane Irma when a Florida Pizza Hut manager incorrectly informed employees they could be punished for missing shifts — even if they were evacuating from the hurricane.

“It’s like with strike planning,” Meyers said, “you have to be proactive and not reactive. It’s the same thing for disaster policies.” Meyers suggests employers create a policy that determines the hierarchy of who manages the disaster. Employers also should have contact information for employees and suppliers on-hand in order to improve logistics and employee support.

#2: Discrimination based on gender for family leave

Concerns about gender discrimination aren’t new, but two recent law suits have added a new perspective, says Anna Steffeney, founder and CEO of LeaveLogic.

The U.S. Equal Employment Opportunity Commission filed a suit against cosmetic company Estée Lauder for providing new fathers less paid leave for bonding that new moms received. Earlier this summer, the American Civil Liberties Union sued JPMorgan Chase & Co., saying its parental leave policy only considers mothers as primary caregivers, making them eligible for a longer amount of paid parental leave than non-primary caregivers.

While the two lawsuits are still in the early stages, their outcome will provide an important litmus test for other companies, Steffeney says. “The best in class advice that employers are receiving today is that you do not have a different policy [for men and women] for bonding,” she says. Recovery time for birth and labor can be provided for birth mothers, but bonding time should be equal for all employees, whether after birth, adoption or fostering, Steffeney says.

#3: Discrimination against transgender and LGBT employees

Companies increasingly want to be inclusive in their workplaces and should have language and wording that reflects that, Meyers says. Although state and local governments continue to enact laws that prohibit discrimination against LGBT employees, the more forward-thinking companies will not discriminate even if that is not laid out in federal law, he added.

#4: Drug testing

Although medicinal marijuana is still illegal under federal law, it is legal in 29 states and Washington, D.C. This has left employers struggling to balance work safety and (legal) drug use, says Michael Clarkson, attorney at Ogletree Deakins.

Employers have landed in hot water when they’ve fired employees after a failed drug test. “It’s a real conundrum,” says Clarkson, who suggests employers treat marijuana like prescription drugs. Consider whether the condition requiring medicinal marijuana is short- or long-term, whether the job is a safety-sensitive position and how much and when the drug is used, he says. Then, case by case, employers can work with the employee to determine if he or she can remain in the job, or if a temporary or permanent transfer is needed, Clarkson says.

#5: Reasonable accommodations under ADA

Companies often make the mistake of failing to consider leave requests once employees have exhausted their Family and Medical Leave Act (FMLA) leave (or when their company is too small to fall under the FMLA), Meyers says. As employees ask for leave, employers should remember that the Americans with Disabilities Act may require additional leave for workers with disabilities. Employers can determine whether the leave is indefinite or definite as they make the decision on accommodation, as indefinite leave is never reasonable. Requests for leave under ADA are increasing, Steffeney said, and these requests aren’t just for physical issues, but also to address mental health and addiction concerns.

Companies should consider these accommodation needs when reviewing policies, perhaps noting in leave and other policies than an exemption may be granted as an accommodation.

Beyond needing leave for themselves, employees also are increasingly requesting leave to care for family members, such as aging parents. Employers may want to consider voluntarily expanding their policies to accommodate these requests to provide best-in-class offerings, Steffeney says.

#6: FLSA and independent contractors

Companies should constantly review their independent contractor policies to ensure the policies are clear on what denotes an employee versus a contractor, Meyers says.

“This is just an area of compliance that companies have to get right,” he added, pointing to Uber as an example. In late 2016, two New York Uber drivers were found to be eligible for unemployment — something usually reserved for employees.

The issue of classifying independent contractors will remain one of the hottest, most litigious areas, with implications for unemployment benefits, workers’ compensation and employment disputes, Clarkson says. The rise of the gig economy, with more independent contractors working, will only make navigating this area more challenging, he says.

Although these six updates don’t address all the HR challenges companies will face in 2018, they are certainly some of the most prevalent and complex. By ensuring company policies are updated and clear, and that employee handbooks reflect this, companies and employees will have an easier time addressing issues when they occur.


AUTHORPamela DeLoatch
Nov. 29, 2017

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