Nonprofits Insurance Alliance

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Does My Organization Really Need an Employee Handbook?

Despite the fact that there are no state or federal laws that require an employer to have and provide handbooks to their employees, it’s almost universally agreed that having and using a well-drafted, comprehensive, and easy to understand handbook serves a number of legal, practical, and risk preventative purposes, and nonprofits are no exception.

Ideally, handbooks not only provide clear and specific information on a large number of important topics to employees, about both their employment and their employer, but they also provide specific notices to the employee about their rights. These often include rights to any job-protected leave, communication of zero-tolerance policies, information on employee benefits, and much more. If applicable, the handbook is also used to establish and clarify the at-will nature of the employment relationship, performance and disciplinary expectations, and policies on vacation and holiday benefits.

However, even well-crafted handbooks can be victims of the passage of time, as well as changes that take place in the law and in the workplace. Regulatory and legislative action can change what an employer is required to do with regard to their employees — often without time to adequately prepare for that change. In their efforts to remain compliant with these changes, employers should be prepared to revise and update any applicable policies in their handbook to reflect new legal realities.

Similarly, if an employer has always had fewer than 50 employees and later increases their workforce to 51 employees, they would then become subject to a number of new laws. The best example would be the fact this employer, who once was not subject to the Family Medical Leave Act (FMLA) leave laws, would now be required to provide their employees FMLA.  In this case, the handbook that never needed an FMLA policy would have to be revised to ensure employees were aware of their newly acquired rights.

Thus, by their very nature, employee handbooks should never be considered “carved in stone.”  They should be reviewed on a regular basis, annually at a minimum. This review should be performed by experienced employment law counsel to ensure that any and all recent legal and workplace developments are taken into consideration in the review and revision process.

 

Post-Accident Drug Testing – It’s No Longer Automatic

For years, many employers have automatically required drug testing of an employee involved in any work-related accident.  The fact that an accident occurred was justification for the testing, without regard to whether any suspected drug or alcohol use contributed to the accident, and regardless of the severity of the injury or damage.

Some states have placed limitations on this practice. For example, in the 2013 California decision resulting from Freeman v Kohl’s, it was found that such a policy of automatic testing was overbroad and invaded privacy rights of  employees.  It held that an  employer’s post-accident policy that requires drug testing in the event of any reported work-related injury, regardless of the extent of any damage, the extent of the injury, and whether the claimant bears any responsibility for incurring the injury, is invalid.

There is now a new and national directive that affects virtually all employers who maintain and implement such a policy.  In August of 2016, the Federal Occupational Health and Safety Administration (OSHA) issued its final rule on electronic reporting of workplace injuries.  Among other things, this rule found that the use of this broad policy after any workplace injury may deter reporting of such injuries and concludes that drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.

According to OSHA, examples of unreasonable use of the test would include a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.

As a result of this new order, there is an increased, but significant risk in continuing the practice of conducting an automatic drug test after any work related accident.  There are significant fines that will be imposed for use of these policies that deter reporting of workplace injuries — and there is also the possibility of facing claims of invasion of privacy from affected employees.

In light of this new rule, drug testing policies must be reviewed and modified to ensure that post-accident drug testing is performed in a fashion consistent with OSHA’s mandates.

 

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