It has been a fast-paced and tumultuous few years for employment law, with ever-changing COVID-19 regulations and an influx of new legislation. With COVID-19 regulations seeming to dwindle, companies may finally find time to catch up on routine corporate maintenance. Now is a great time to draft or update your employee handbook. Here are some important considerations to keep in mind when undertaking your review:
1. Ensure your Handbook is Compliant with New Legislation
While this recommendation may seem obvious, employers, particularly in the Virginia, have seen a significant amount of employment legislation go into effect over the past few years. These include changes regarding pregnancy and disability accommodations, whistleblower protections, and new protected classes under the Virginia Human Rights Act. A number of these laws have placed employers in a precarious position, and violations can be more costly than ever. In light of these risks, employers should be sure to cross-reference their handbook policies with new legislation.
There has also been an uptick in municipal legislation addressing employment matters. These laws often relate to paid leave or provide expanded anti-discrimination protections. When updating your handbook, it is important to review of not only state and federal law, but also municipal law for jurisdictions in which you have employees.
2. Address Remote Work
The typical employment relationship looks drastically different than just a few years ago. The COVID-19 Pandemic required a significant number of employees to work from home—many of whom continue to do so. A well-drafted remote work policy is more important than ever. Going forward, employers need to consider adding remote work policies to their handbooks.
Remote work also adds an additional wrinkle, as employees can now perform work across the country, even in states in which the employer does not otherwise operate. In these cases, employers must determine, among other things, whether their employees are entitled to additional protections based on the state or municipality in which they are working. Addressing these laws in handbook addenda can also help reduce risk exposure.
3. Reevaluate Your Drug Testing Policy
Several states have recently passed legislation regarding medical and recreational marijuana use. This has prompted a number of employers either to eliminate or loosen their drug testing policies as applied to marijuana screening. While such changes are often a business decision used to recruit and retain workers, they may also be required by law, as a number of states have passed laws which specifically prohibit employers from disciplining employees for off-duty use of marijuana.
Virginia has not gone quite as far. Virginia employers are prohibited from disciplining, discharging or discriminating against any employee who lawfully uses cannabis oil pursuant to a written certification by a healthcare provider to treat a diagnosed condition or disease. Notably, at this point in time, this protection is limited to use of cannabis oil and not medical marijuana, generally. Employers should consider these quickly changing laws when updating their drug testing policies.
Looking for additional guidance on evolving legislation and its impact on your handbook policies? Ready to kick off an employee handbook project? Contact any member of the Hirschler employment practice group.
Stephanie A. Hood