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  • Lisa Nagele-Piazza

Top Employee Handbook Updates for 2022

January 25, 2022

WWorkplace laws are evolving quickly, particularly when it comes to COVID-19-related safety rules and state-level paid-leave requirements. Employers should review their handbooks to ensure policies are updated as the pandemic continues and new laws take effect at the federal, state and local levels.

"Annual reviews of employee handbooks, conducted by counsel, are always a prudent way to stay ahead of the curve," said Timothy McCarthy and Stephanie Peet, attorneys with Jackson Lewis in Philadelphia, in a joint statement. "Employers should try to be proactive, rather than reactive, when it comes to workplace issues."

Topics that should be top of mind for human resource professionals include COVID-19 vaccination and testing policies, accommodation requests, and remote-work rules. "Employers should also review their sick-leave and paid-time-off policies to ensure those policies are being followed and are appropriate, given the workplace changes brought on by the COVID-19 pandemic," McCarthy and Peet said.

Many paid-leave rules apply for more than pandemic-related reasons. "Employers should also keep their eyes on the potential for paid leave at the federal level," said Carrie Hoffman, an attorney with Foley & Lardner in Dallas. "Several paid-leave proposals have been garnering traction in Congress. If passed, handbooks will need to be updated."

Here are some key factors employers should note as they review their handbooks in 2022.

COVID-19 Vaccination Policies

"Employers need to be aware of the laws in their jurisdictions governing COVID-19 vaccine mandates," McCarthy and Peet said. While some states and localities have passed laws mandating COVID-19 vaccinations for certain employee populations, other jurisdictions have taken the opposite tack and instead prohibited employers from requiring vaccinations or expanded exemptions.

The U.S. Supreme Court recently halted the federal government's vaccine-or-testing rule for businesses with at least 100 employees. Many covered employers have already developed policies to comply with the directive and will need to decide whether to roll back those policies, adjust them based on business needs or move forward as planned.

Employers should note that lawsuits over federal and state workplace vaccination mandates are still pending. Employers should continue to follow developments in the litigation, Hoffman said, and should consider which COVID-19 safety policies they want to implement and how best to educate their workforce on these issues.

In workplaces with vaccination directives, employees may be entitled to a reasonable accommodation based on medical or religious objections. McCarthy and Peet suggested that employers develop written accommodation policies that address the steps managers and HR representatives should take when presented with an accommodation request.

"To that end, employers should consider training their managers and human resources employees involved in evaluating accommodation requests so they are aware of the employer's policies and legal requirements," they said.

Remote-Work Rules

"The pandemic has given rise to a growing number of companies shifting to operating with hybrid workforce models, and many employees have expressed a preference for remote and flexible work arrangements," observed Jim Evans, an attorney with Alston & Bird in Los Angeles.

As companies bring employees back to the workplace, he said, HR professionals should be prepared to handle requests from employees who want to continue remote-work arrangements.

Be sure to have clear, documented explanations why certain positions can be remote and why others require a physical presence, Evans said, noting that employers should carefully consider employee requests to work from home as a reasonable accommodation.

Litigation associated with a return to the workplace is on the rise, particularly claims involving remote work, leave, disability discrimination and retaliation, Evans added. "Employers should be careful in addressing employees' safety concerns and requests related to continued remote work. There should be clear, documented reasons for personnel actions based on objective and nondiscriminatory criteria."

McCarthy and Peet said employers should also review their policies governing workplace privacy, teleworking and use of their electronic systems.

Evolving Leave Policies

The big-ticket items for employers to watch at the state level involve paid and unpaid leave laws, McCarthy and Peet noted. Many states expanded access to leave for COVID-19-related and other medical reasons.

"California always has new laws that will require updates to their handbooks," Hoffman observed. For example, effective Jan. 1, the California Family Rights Act was expanded to allow covered workers to take leave to care for a parent-in-law.

Connecticut and Oregon also expanded their family-leave laws, and Illinois has a new law requiring employers to provide victims of violent crimes (and family members of victims) with unpaid leave or allow them to take available paid time off.

Wage and Hour Changes

"Employers should be vigilant on the wage and hour front, as many states are updating their overtime and minimum wage regulations, many of which overlap with federal law," McCarthy and Peet said. For example, Pennsylvania is doing away with its separate white-collar exemptions to overtime pay rules and is adopting the Fair Labor Standards Act's (FLSA's) criteria.

To qualify for the white-collar exemptions under the FLSA, employees must perform certain duties, be paid on a salary basis and meet a minimum salary threshold. Currently, the FLSA's salary threshold is $35,568, but some states have a higher cutoff for exempt workers.

Additionally, 25 states scheduled a minimum wage increase for some time during 2022, according to the National Conference of State Legislatures, with the majority having taken effect on Jan. 1. Many state and local wage rates have been increasing in phases each year to ultimately reach $15 an hour, and some have already reached or surpassed that rate.

Staying Ahead of Changes

Keeping up with legal changes that affect the workplace can be challenging for employers. Hoffman suggested that HR departments create a digital file for any legal updates received electronically and let the entire HR team add to the file. The information in the file can be used as a starting point to revise the handbook.

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