Our Insights


New Year, New Employee Handbook: Rethinking Your Policies in the Wake of 2017

Author: Ashley A. Wenger-Slaba (Sioux Falls)

Published Date: December 28, 2017

2017 has been quite a year, with ever-changing regulations, trends, and employee expectations at the local, state, and federal levels. In this environment of constant flux, an outdated employee handbook can leave an employer unnecessarily susceptible to potential claims. Reviewing and updating handbook policies to reflect the latest legal developments and best practices, however, can help your company avoid unnecessary exposure. Below are just a few of the areas in which you may want to consider revisions based on the happenings of 2017.

Workplace Drug Testing

Multistate employers now operate in a compliance environment where more than half the states have legalized medical marijuana, and a growing number of states allow the recreational use, sale, and consumption of marijuana as well. Although most medical marijuana laws provide that employers are not required to accommodate intoxication, use, or possession in the workplace, the medical marijuana laws in some states, including Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada, Pennsylvania, and Rhode Island, do contain antidiscrimination provisions that employers must adhere to. For example, section 152.32(3)(c) of the Minnesota Statutes states that “an employer may not discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon . . . a patient’s positive drug test for cannabis . . . unless the patient used, possessed, or was impaired by medical cannabis on the premises of the place of employment or during the hours of employment.” Therefore, depending on the states in which you have employees, you may need to revisit your workplace drug testing policies and practices to ensure adherence with the newest laws.

Gender-Neutral Parental Leave

This past summer, several companies found themselves facing claims of gender discrimination based on employer leave policies that provided new fathers with less paid leave for bonding than new mothers received. Until the courts provide us with further guidance on this topic, employers may want to consider heeding the U.S. Equal Employment Opportunity Commission’s latest Enforcement Guidance on Pregnancy Discrimination and Related Issues and revising their parental leave policies to provide equal bonding time to men and women alike. Employers that wish to continue making additional leave available to mothers only may want to tie such additional leave to a medical disability resulting from pregnancy, childbirth, or related conditions in order to maintain gender neutrality.

#MeToo and the Proliferation of Sexual Harassment Allegations

The recent #MeToo movement and the proliferation of sexual harassment allegations have amounted to a cultural turning point on the issue of sexual misconduct. The impact of #MeToo reaches far beyond the celebrity ranks and into everyday workplaces. Although there are many things employers should consider doing in response to this movement, with respect to employee handbooks in particular, companies may want to (1) strengthen their written harassment policies and (2) revise their complaint reporting systems to increase understanding and accessibility among employees.

Paid Sick Leave

The recent proliferation of paid sick leave legislation continued throughout 2017. While there is no federal law on point at this juncture, this patchwork of oftentimes conflicting legislation at the city, county, and state levels has created something of a compliance nightmare for many multistate employers. In light of these complex developments, employers may want to explore whether they can modify their existing paid time off and vacation policies to comply with applicable laws or adopt new policies, mandated notices, and recordkeeping requirements in order to maintain compliance.

Ashley A. Wenger-Slaba  (Sioux Falls)

Ashley A. Wenger-Slaba
Ashley Wenger-Slaba advises and represents large and small employers on a wide variety of employment law matters. Having also worked in house, Ashley draws on that experience to work towards finding solutions for her clients that meet both their legal and business needs. Ashley enjoys working with companies to revise policies and procedures to ensure legal compliance, address everyday employment issues that arise with current and former employees, and conduct internal investigations and...