EMPLOYEE HANDBOOKS ARE CRITICAL TO PREVENT SUCCESSFUL EMPLOYEE LAWSUITS (PART 3 – Employer Rules, Regulations, and Procedures & Federal Policies)

This is the third article in a series explaining how Employee Handbooks play a critical role in preventing successful lawsuits. This post focuses on Employer Rules, Regulations, and Procedures that should be considered when writing an Employee Handbook.

Employer Rules, Regulations, and Procedures

A handbook is a good place to publish and organize what the employer expects from each employee, e.g.:

  • Rules of conduct
  • Hours of work
  • Corporate ethics policies
  • Timekeeping practices
  • Internet and E-Mail usage and monitoring policies
  • Non-harassment/non-discrimination  policies
  • Attendance policies
  • Discipline policies
  • Dress codes
  • Safety policies
  • Drug and Alcohol Policies
  • Workplace violence policies
  • Use of confidential information
  • Telephone use policy
  • Social Media Use Policies
  • General Computer Use Policies
  • Security and/or evacuation policies
  • Drug free workplace policy

Federal Policies

Assuming the company is subject to the Family Medical Leave Act (“FMLA”) (having 50 or more employees for each of 20 or more calendar weeks in the current or preceding year, in a given geographical area) and/or the Americans with Disabilities Act (“ADA”) (having 15 or more employees), an employee handbook should include policies establishing compliance with these laws.  Because these statutes are complex, it is unnecessary (and perhaps unwise) to attempt to completely summarize these laws (or any federal, state or local law regarding an employee’s legal rights).

The FMLA requires an employer that is going to require its employees to first exhaust paid leave to communicate this requirement in a handbook. It is also helpful to advise employees what employers expect from them in terms of communication and notice during periods of leave. The following areas should be covered in a FMLA policy:

  • Employee eligibility requirements (employed by the company for 12 months and worked at least 1,250 hours during the 12 months prior to leave);
  • Types of covered leave (child birth, care of a newborn, adoption or placement of a child in foster care, care for a child, spouse or parent with a “serious health condition,” and the employee’s own serious health condition);
  • Employer’s method for calculating leave time (calendar year, rolling 12 month, or fixed 12 month period);
  • Notification requirements ;
  • Continuation of medical/non-medical benefits ;
  • Employee must (at company’s discretion) exhaust all paid time to offset FMLA time off;
  • Reinstatement rights after FMLA leave;
  • Employer’s right to require a doctor’s examination before the employee returns to work ; and
  • Required documentation.

Sample:

 In accordance with the Family and Medical Leave Act, eligible employees may be entitled to 12 weeks of unpaid, job -protected leave for certain family and medical reasons.  Eligible employees are those individuals who have been employed for a minimum of one year with the Company and have completed at least 1,250 hours of service during the previous 12 months. Family and Medical Leave may be taken for the following reasons:

  • To care for your child after birth, or placement for adoption or foster care; or
  • To care for your spouse, son or daughter, or parent who has a serious health condition; or
  • For a serious health condition of your own that renders you unable to perform your Upon your return to work, to the full extent required by law, you will be restored to your original position or a position with equivalent pay, benefits and working conditions without a loss in continuous employment status. In all instances, you will be required to use any accrued paid leave and vacation days as part of the 12 week total.  When a leave of absence under this policy is for foreseeable reasons, such as the birth or adoption of a child or planned medical treatment, you are required to provide 30 days advance notice.  You must provide medical certification for any absence based upon a health condition or illness.  The Company has the right to require a second opinion verifying leave based upon a serious health condition.  If the first and second opinions differ, the Company may require the binding opinion of a third health care provider, approved jointly by the Company and the employee and paid for by the Company.  In the case of illnesses, you are required to report every 30 days on your leave status and intention to return to work.

Forms for requesting leave are available through the Human Resources Department.  Your medical and dental benefits will be continued while you are on Family and Medical Leave.  You will be required to continue to pay your portion of the insurance premiums.  If you do not return to work, the Company will require you to repay the full premium for your medical and dental benefits that continued while you were away from work.  For a detailed explanation of the Family and Medical Leave Policy, please contact the Human Resources Department.

b.         Americans With Disabilities Act (“ADA”). Employer should express its commitment to comply with the ADA in either the EEO Statement or in a separate ADA policy. The key is to articulate that the employer is committed to making reasonable accommodations that are necessary to enable a “qualified individual with a disability.” This distinction is important: employers do not have a duty to accommodate “unqualified individuals” (that is, those who could not perform the essential functions of his/her job with or without reasonable accommodations).   Nor must employers accommodate disabled employees when the employer is unaware of the disability.  As a result, the ADA should reinforce the employee’s duty to notify the employer of a disability.

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