Handbooks are a key asset for communicating company policies and promoting fairness and consistency in the workplace, and ever-evolving federal, state and local laws make routinely reviewing and updating handbooks critical for employers.
2018 proved to be a busy year, particularly at the state and local levels as new and amended employment related laws took effect in 27 states and several key municipalities.
Many of these laws apply to all employers, regardless of size, but some make exceptions for small businesses, so smaller employers may need to verify who counts as an employee under applicable laws.
For example, some laws consider temporary, seasonal and part-time workers employees, and others do not.
Employers operating in multiple jurisdictions may have the additional challenge of determining how to best proceed in the face of varying state and local legal requirements.
New compliance requirements speak to such topics as equal employment opportunity (EEO), reasonable accommodations, smoking and leaves of absence.
Here are some of the key state and local issues employers should note when updating their handbooks.
1. Equal Employment Opportunity
States and municipalities continue to pass laws that extend equal employment opportunity protections to employees who are not protected under federal law, including medical marijuana users and those who identify as lesbian, gay, bisexual and transgender. There has also been rapid movement on the state level to pass sexual harassment-prevention laws in response to the #MeToo movement.
In 2018, nine states and a key municipality adopted or amended 14 distinct EEO laws addressing issues such as:
- Requiring anti-harassment training focused on gender identity and sexual orientation.
- Defining retaliation procedures.
- Legalizing medical or recreational marijuana use.
- Adding discrimination protections based on gender identity and for victims of crimes.
- Providing non-gender, single-user restrooms in public places or places of public accommodation.
For example, under New York City’s new sexual-harassment-prevention requirements, employers must incorporate expanded anti-harassment provisions into their policies, and post and distribute related notices and materials. Employers should be aware of additional compliance requirements that will take effect in 2019 under New York City and state laws.
Employers in affected states and municipalities should review and revise their employee handbook and EEO policies, including policies on discrimination, harassment and retaliation.
2. Reasonable Accommodations
In 2018, new or amended reasonable-accommodation compliance requirements took effect in seven states and two key municipalities. They address issues such as:
- Expanding reasonable accommodations for women who are pregnant or breast-feeding.
- Allowing people who have certain conditions public access to employee restrooms.
- Providing safety accommodations to people who have been sexually assaulted or experienced domestic violence or stalking.
Amendments to the Illinois Nursing Mothers in the Workplace Act significantly expanded workplace accommodations and protections for women who breast-feed or need to express breast milk. Notably, Illinois employers are now required to provide a reasonable paid break each time an employee needs to express breast milk for her nursing infant child (for up to one year after the child’s birth).
Employers in affected states and municipalities should review and revise their employee handbook and reasonable-accommodation policies, including policies on breast-feeding and pregnancy.
3. Leaves of Absence
Expanded state and local leave laws continue to present complex challenges for employers. Each leave of absence law has its own standards regarding which employees are covered, which employers must comply and how employers must comply.
Multi-state employers not only have to be aware of these standards, but they also must continuously monitor changes to state and local leave laws and adjust their business practices accordingly.
In 2018, 17 states and three key municipalities adopted or amended leave laws, addressing such issues as:
- Requiring paid family leave.
- Expanding existing leave laws to cover smaller employers.
- Expanding leave and reinstatement rights for military service members.
- Requiring safe leave to be incorporated into existing sick-leave laws.
- Providing domestic-violence leave.
New Jersey was one of several states that passed a statewide paid-sick-leave law. All New Jersey employers are required to provide up to 40 hours of paid sick leave a year to eligible employees. This law expressly pre-empted all existing municipal paid-sick-leave laws and enacted uniform compliance obligations across the state. So employers in those municipalities were required to overhaul their sick leave policies and implement an updated policy in accordance with the new state law.
Employers in affected states and municipalities should review and revise their employee handbook and leave-of-absence policies, including policies on sick leave, paid family leave and military leave.
4. Equal Pay and Wage Discrimination
States and localities are aggressively pushing to pass pay-equity laws to achieve fair pay across the board. In 2018, four states and two key municipalities adopted or amended pay-equity laws,addressing such issues as:
- Prohibiting wage discrimination on the basis of gender.
- Prohibiting employers from asking job applicants and employees about salary history or otherwise seeking such information.
- Prohibiting employers from banning wage discussions among co-workers.
For example, Massachusetts recently strengthened its existing equal-pay law. The law broadly prohibits pay discrimination based on gender for work that is “comparable” rather than “the same.” The law also prohibits employers from asking about or otherwise screening job applicants based on their salary history. The amendments also address safe harbors for employers, enforcement and notice-posting requirements.
Employers in Massachusetts and other locations with similar requirements should review and update their EEO discussion policies to ensure they incorporate the new protections.
5. Safe Driving
Under the Occupational Safety and Health Act, employers are responsible for providing a safe workplace. Businesses that require workers to drive while on the job should note the increasing number of state laws that address distracted driving, especially those laws restricting or prohibiting cellphone use and texting while driving, and ensure their safe-driving policies are up-to-date.
In 2018, three states adopted or amended laws relating to the use of a cellphone while driving, addressing such issues as:
- Prohibiting the use of a hand-held cellphone while driving.
- Redefining the types of devices prohibited under the law.
For instance, Georgia’s hands-free law now prohibits all drivers from using hand-held wireless telecommunications devices and stand-alone electronic devices while driving. Drivers may not use any body part to physically hold or support a wireless telecommunications device or a stand-alone electronic device, or write, send or read text-based communications while driving. The law previously prohibited texting while driving but allowed adult drivers to talk on a hand-held cellphone.
Employers in affected states should review and revise their employee handbook and safe-driving policies to incorporate these protections.
6. Smoke-Free Workplace
More states are including e-cigarettes and other tobacco substitutes in their laws prohibiting smoking in the workplace. Employers may be required to post notices, provide designated smoking areas and makeother adjustments under such laws.
In 2018, two states adopted or amended laws related to smoking in the workplace.
An example is an amendment to the Rhode Island Public Health and Workplace Safety Act, which expanded the definition of smoking to include the use of electronic cigarettes, electronic cigars, electronic pipes, electronic nicotine-delivery system products and similar products that rely on vaporization or aero-solization. Items now included in the definition of smoking are prohibited in all enclosed areas in the workplace.
Employers in affected states should review and revise their employee handbook and smoking policies to incorporate these protections.
7. Weapons in the Workplace
Employers should take steps to ensure a safer and more secure workplace. However, in doing so, employers should note any applicable state laws about weapons on workplace property.
In 2018, three states adopted or amended laws related to weapons in the workplace, addressing such issues as:
- Keeping guns in vehicles in company parking lots.
- Restricting the carrying of a concealed handgun to those authorized to carry a handgun.
West Virginia joined the growing number of states that allow employees, customers or invitees to store a firearm in a privately owned vehicle in a company parking under certain circumstances. Under WestVirginia’s amendment to the state Business Liability Protection Act, people can store a firearm in a parking lot if they are allowed to be in that area and the firearm is possessed lawfully, out of view and locked inside a motor vehicle in the parking lot. Employers may not prohibit or attempt to prevent a vehicle operator from entering the parking lot because the vehicle contains a firearm if the weapon is carried for a lawful purpose and is out of view.
Employers in affected states should review and revise their employee handbook and policies regarding weapons in the workplace to incorporate these protections.
For questions or concerns regarding any of these areas, please feel free to contact one of our experienced professionals for further guidance.