Update employee handbook now, save later

Michael A. Gamboli and Alicia J. Byrd

03/14/2009

Most Rhode Island businesses have an employee handbook containing the company’s personnel policies. Handbooks are beneficial to companies because they provide employees with a clear picture of what to expect during their employment and help company operations run smoothly. Handbooks also can be a vital resource in defending employee discrimination claims, as they can provide concrete evidence that an employer acted properly and in accordance with its written policy.
However, handbooks that are not well-written or that do not accurately reflect a company’s application of employment policies can expose employers to unnecessary and expensive legal issues. The biggest risk for a company is having handbook policies that are so out of compliance with current law that they are illegal.
Due to recent changes in employment law the risk of having and following illegal policies is greater than ever, and in 2009 even the most diligent employers may find that their handbooks are outdated, misleading or in violation of the current law. A few examples of recent changes to handbook requirements are discussed below.
Required FMLA revisions
Updating employee handbooks pursuant to the new Family and Medical Leave Act (FMLA) regulations is not only good practice but legally required for all employers with 50 or more employees. Covered employers always have been required to summarize their FMLA policies in their handbooks, but starting on Jan. 16, specific information never before required must now be in handbooks, including:
• The reasons for which leave may be available.
• The circumstances in which military family leave may be available.
• The definition of a “serious health condition.”
• A statement that health care benefits continue during the leave.
• Notification that intermittent leave may be taken and a description of intermittent leave.
• A statement as to what notice an employee must give the employer prior to the FMLA leave.
• A statement informing employees requesting leave that they will be notified if they are eligible for the leave and why.
• A statement informing employees that interference or discrimination against an individual for exercising FMLA rights is illegal.
Suggested FMLA Revisions
While simply duplicating the form contained in the FMLA regulations is an option, thoughtful incorporation of the new material will avoid disputes by employees in the future. Prior to the revised regulations, it was often appropriate to only include in the handbook a general description of FMLA leave rights along with the name of the person from whom the employee could seek information. However, now that the employer is required to include various details regarding the FMLA, employees are much more likely to rely upon the written policy without further inquiry. Thus, including other important details in the policy will help avert employee discontent and corresponding lawsuits. For example, in the section regarding health benefits, it makes sense to include the detail that repayment of health insurance premiums is required if the employee does not return to work.
Furthermore, if employers previously lumped their FMLA policy with their R.I. Family and Medical Leave Act (RIFMLA) policy, employers need to make sure that the added information does not mislead the employees regarding their RIFMLA rights. For example, the new regulations require notification regarding FMLA intermittent leave, which is not available under the RIFMLA. Similarly, employers should be careful that their handbook does not create the impression that the employee can file suit pursuant to the RIFMLA through the FMLA avenues.
Other Suggested Changes
While employers are dusting off their employee handbooks to avoid FMLA penalties, it is important not to ignore the other changes in the law. Due to changes to the Americans with Disabilities Act that went into effect on Jan. 1, employers with more than 15 employees are prohibited from discriminating not only against employees with disabilities but also against employees with protected impairments.
The legal landscape in the area of employment law is consistently changing. Employers are wise to review and revise their employee handbooks on a yearly basis. Given the recent dramatic changes discussed herein, now, more than ever, an update to ensure your handbook complies with the current law is mandatory. •

As members of Partridge Snow & Hahn LLP’s Employment and Labor Group, Alicia J. Byrd and Michael A. Gamboli advise clients on the potential impact of employment decisions.

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