With the onslaught of the pandemic in 2020, many employers were busy dealing with staffing issues, safety concerns, and COVID-19–related legislation. There may have been little to no time to address handbook policies. With many changes on the horizon in 2021 under President Biden's administration and the adaptations in the working environment due to COVID-19, it may be a good time for employers to turn to the company handbook to ensure it is up to date. This article will highlight five areas to which employers may want to give special attention in 2021.
The FFCRA and Other COVID-19–Related Enactments
The Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020. However, the Consolidated Appropriations Act, 2021, extended the FFCRA's refundable tax credits until March 31, 2021, which are available to covered employers that voluntarily provide expanded family and medical leave and/or emergency paid sick leave. Employers that continue to provide paid leave under the FFCRA or that are subject to state and local COVID-19–related rulemaking may want to consider keeping any related policies separate from their employee handbooks. Not only are these recent laws temporary in nature, many may also change during the new presidential administration. Including COVID-19–related policies in a handbook may require updating the handbook each time a law changes, which could be an administrative burden for some employers.
Workplace Safety and Health Policies
The ongoing COVID-19 pandemic has thrust the Occupational Safety and Health Administration (OSHA) into the spotlight. As of February 1, 2021, OSHA had received 13,185 COVID-19–related federal complaints. OSHA had received an additional 4,639 whistleblower complaints alleging retaliation for bringing forward safety and health concerns.
In addition, workplace safety and health appears to be a priority of the Biden administration. On January 21, 2021, President Biden issued the Executive Order on Protecting Worker Health and Safety, which, among other things, requires OSHA to "consider whether any emergency temporary standards on COVID-19 ... are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021." The executive order puts a renewed focus on OSHA's enforcement efforts related to COVID-19.
Accordingly, it may be helpful for employers to consider addressing workplace safety and health in their handbooks. Employers may want to implement handbook safety and health policies that include information regarding the responsibility of every employee to work safely; follow all safety and health procedures applicable to their jobs; report potential safety and health hazards in the workplace; and report any work-related accidents, injuries, and illnesses as soon as reasonably possible. Employers may also want to consider including reporting procedures and nonretaliation provisions in their policies.
The NLRB and Handbook Policies
Republican members of the National Labor Relations Board (NLRB) are expected to remain in the majority through the summer of 2021. Once Democrats gain a majority on the Board, they may seek to roll back some of the more employer-friendly Board policies and decisions issued during the Trump administration. Over time, it is reasonable to expect the pendulum to swing back toward the Obama administration's practice of issuing decisions scrutinizing handbook policies under the National Labor Relations Act. Thus, employers may want to watch out for new NLRB decisions and review handbook polices that have come under the purview of the NLRB in recent years, including social media, electronic communications, dress code, conflict-of-interest, and confidentiality policies, to ensure compliance.
Wage and Hour Policies
More employees are working remotely, making it difficult for supervisors to observe the work hours of nonexempt employees. New work arrangements might necessitate updates to current timekeeping policies and procedures to ensure that nonexempt employees accurately report all hours worked and understand what prior approval, if any, is required to work overtime hours. Employers may want to consider adopting policies that strictly prohibit off-the-clock work and require employees to thoroughly review their time and pay records to ensure accuracy.
Wage and hour claims continue to be among the most frequently filed claims in employment litigation, and related retaliation claims are increasing. Many employee handbooks do not address whom employees should contact with any concerns regarding their hours and pay, which may leave some employers vulnerable to arguments that employees did not have avenues to resolve their complaints. In addition, handbooks containing nonretaliation provisions related to employee complaints about hours or pay may be useful. While such provisions can be found in almost every policy prohibiting discrimination and sexual harassment, they are often forgotten in the context of complaints regarding wages.
Should Some Items Be Kept Separate From the Handbook?
Employers may want to consider including a disclaimer at the beginning of their handbooks expressly stating that the handbook does not constitute a contract and reiterating the at-will nature of the employment relationship, which is required in certain states to solidify employment-at-will principles. Moreover, contracts and other legally binding instruments—including noncompete, nonsolicitation, and nondisclosure agreements, as well as arbitration agreements and releases of liability—may be better kept separate from the handbook. This may help to strengthen the handbook's enforceability and protect the entire handbook from being construed as a contract.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm's Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm's webinar and podcast programs.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.