Updating or Creating an Employee Handbook Amidst the Changing Legal Landscape of the COVID-19 Pandemic

In many ways, COVID-19 has changed the way our workplaces operate. But with evolving health and safety concerns to manage and pressing issues like staffing shortages to handle, employers likely have had little time to spend on updating employee handbooks. Human resources professionals and businesses have had to quickly adapt in response to a variety of changes in the employment law landscape these past couple years, making it an optimal time to update employee handbooks – or create one if your business has not yet formalized its policies.

Employee handbooks formalize the company values, mission, policies, and procedures, and provide a resource for employees and managers to refer to throughout their employment. Businesses of all sizes can benefit from having an employee handbook or manual that clearly sets standards for employee conduct and internal procedures, especially in these unpredictable times.

Reviewing your handbook for any necessary updates during the pandemic in 2022 provides an opportunity to make sure the basics are covered. One invaluable component of having a handbook or employee manual is the opportunity to clearly communicate important policies to employees and receive documented acknowledgement that the employee received and is responsible for knowing the information. In the event of termination or if a legal issue arises, having this acknowledgment is essential. Employers should obtain signed acknowledgements from employees when they are first given the handbook and any time updates are made.

Every employee handbook should also contain an anti-harassment and discrimination provision which states that the employer complies with federal and state laws that prohibit discrimination, harassment, and retaliation. This provides an opportunity to explain the policy for reporting harassment or discrimination and how the employer will handle complaints and investigations.

Another fundamental to consider when creating or updating the handbook is to make sure the nature of the employee handbook does not inadvertently alter the at-will nature of the employee. Prominently in the handbook a disclaimer should be given that the handbook is not a contract of employment, and that the employee is an at-will employee. Also, certain contractual documents like non-disclosure agreements or noncompete agreements should be kept separate from the employee handbook so the handbook is not construed as a contract.

Once existing and fundamental policies have been reviewed, the pandemic has undoubtedly brought attention to a unique set of policy changes that may warrant a policy update or addendum in 2022:

Remote Work. You may want to formally adopt or modify an existing telework policy in your handbook that can continue beyond the pandemic. Many businesses are embracing hybrid work arrangements or remote work for the future and defining the terms of the policy can be beneficial to avoid any misunderstandings and set employee expectations. Likewise, employers planning to transition some or all employees back to the workplace should plan for how those policies will be communicated. Remote work policies should also account for other things like reimbursement of remote work expenditures and state and local tax issues that may arise if remote work could lead to the employer having a presence in a state or locality where the employer is not already present. The EEOC has also issued guidance on how to handle remote work accommodations requests under the Americans with Disabilities Act (ADA) and related accommodations policies may need to be updated.

Social Media and Technology. Social media usage and online communication have become even more intertwined with business during the pandemic with the increase in remote work. A social media policy that addresses both on the clock and off-duty social media usage is something many businesses consider. It is important to consider the policy’s impact and compliance with important employee rights, such as the right to discuss conditions in the workplace, with or without a union under the National Labor Relations Act (NLRA). Many employees have also started to use their own devices or company-issued devices at home to enable flexibility. Employers should consider whether existing policies address how employees may be accessing company applications and systems from external networks and could leave the company vulnerable to a data breach. Bring your own device (BYOD) policies are one solution that companies have implemented to regulate employees’ access of company servers from personal devices to help secure networks and employee expectations in the work-from-home era. Implementing other data security policies, formalized in the handbook, can also help guide employees and establish cybersecurity protection while using remote workers.

Leave and Time Off. Requests for time off certainly have been an evolving and important issue throughout the pandemic. Now more than ever it is important to consult your leave policies and make sure they account for changes in the law. As some of the temporary pandemic-related paid sick and family leave obligations expired during 2020 and 2021, it is also necessary to review leave policies in existing handbooks and remove any references to laws that no longer apply. Some states and local governments are also expanding paid leave requirements and it is important to regularly consult these leave requirements and update accordingly. In areas such as paid leave that are prone to frequent changes during the pandemic, an option to relieve the administrative burden of frequent handbook updates is to formalize the temporary policy changes in the form of a handbook addendum.

Workplace Health and Safety. The Occupational Safety and Health Administration (OSHA) and vaccine mandates are certainly a regular topic of discussion for many human resources professionals, and it is an important time to consider how your employee handbook addresses workplace health and safety. In light of the Supreme Court’s recent ruling blocking OSHA’s vaccine-or-test Emergency Temporary Standard (ETS) for large employers, many businesses are considering what safety measures to implement in the workplace for 2022 given the lack of standardized regulation. During these uncertain times it is important to follow updates in ongoing litigation over employer-mandated vaccine policies as any vaccine-related policies are created. Employers should also consider whether company policies will address specific actions employees should take in response to COVID-19 events and how confidential medical information will be treated. As COVID-specific provisions are likely subject to frequent updates, policies can also address general areas of safety and health responsibilities of employees such as reporting safety hazards or following safety guidelines set by the employer.

Wage and Hour. Work arrangements necessitated by the pandemic have blurred the lines between work and home and make it difficult for managers to monitor when an employee is on and off the clock. It is important in this case for employers to consider a policy that prohibits off the clock work for nonexempt employees. Your wage and hour policies should be routinely evaluated, especially for Pennsylvania businesses as there may be updates in the wage and hour front for tipped employees and on the minimum wage in 2022.

Handbooks are not only a great tool to communicate your policies and procedures to employees but can also provide protection or your business against employee lawsuits. To be effective your handbook needs to be updated to the current laws and reflect your businesses’ current policies. An outdated or inaccurate handbook that no longer complies with the law could be problematic in the event of an employee lawsuit, so it is necessary to revisit your policies regularly and ensure compliance. While the employment law environment can feel unpredictable during the pandemic, it is a good idea to revisit your handbooks and make sure essential provisions like antidiscrimination and at-will employment policies are current and provided for.

Finally, consider how the pandemic influenced how your company will operate in 2022 and whether certain policy changes warrant a handbook update or addendum. Providing this clear documentation of corporate change or direction to personnel through the handbook may help to provide some clarity and consistency during these unprecedented times.

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