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Jeremy V. Farrell

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Deputy Chair, Litigation Department

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Considerations When Updating Your Employee Handbook

Jeremy V. Farrell, Esq., jfarrell@tuckerlaw.com, (412) 594-3938

Employee handbooks are an effective tool for employers for a variety of reasons. They set the rules of the road for your organization, aid in legal compliance, and can help your managers deal with potentially difficult employee relations issues. Handbooks are also typically one of the first things requested in litigation or government investigations, so having one that is effective and up to date is critical.

Paying close attention to equal employment opportunity policies, including those protecting against discrimination, harassment, and retaliation, is obviously important. Beyond those, however, there are a slew of additional items that employers should be mindful of as they update their handbook.  The checklist below highlights some of them:

  • Substance abuse policies: Pennsylvania’s Medical Marijuana Act (MMA) raises various issues that employers are wise to proactively address in their handbooks. That includes a prohibition against having or consuming medical marijuana while at work and forbidding employees from coming to work under the influence of medical marijuana. Because the MMA does not clearly define what it means to be “under the influence” of medical marijuana, employers should also consider inserting their own definition that is consistent with the terms of the law. Companies can also require the reporting to HR of the use of substances (including medical marijuana) that could pose safety concerns, even if legally prescribed.
  • Medical exams and inquiries:  The Americans with Disabilities Act (ADA) severely restricts when employers may make medical exams or inquiries of their employees, limiting it to instances where the exam or inquiry is “job-related and consistent with business necessity.” (Different rules apply to applicants and those who have received conditional offers.)
  • Paid sick leave laws: While Pennsylvania does not have a statewide paid sick leave law, some of its municipalities do—including both the City of Pittsburgh and Allegheny County. These local laws tend to have very specific rules governing the accrual and use of sick leave that employers must be mindful of, such as minimum accrual rates, limitations on advance notice requirements, and prohibitions against retaliation.
  • Forfeiture of PTO upon termination:  Because Pennsylvania employers are generally not required to provide paid time off (“PTO”) to their employees (absent an applicable local sick leave law), companies in the state may adopt “use it or lose it” policies under which employees forfeit any accrued, unused PTO at the time of separation. Having a clearly drafted policy, however, is necessary to be able to do so.
  • Payroll deductions:  The Pennsylvania Wage Payment and Collection Law places significant restrictions on the types of deductions that an employer may take from an employee’s pay. Most deductions must be made for the convenience of the employee and, in many instances, be approved in writing by the employee. Also, make sure to include an avenue for employees to report potentially improper deductions and a promise to pay all wages to employees if the complaint turns out to be founded.
  • Reasonable accommodations:  Consider including a universal policy dealing with the reasonable accommodation process for employees who may need them because of disability, religion, or pregnancy and related medical issues. This policy can include requirements that employees participate in good faith in the interactive process and a notification to the employee that additional information or documentation may be requested to support the request.
  • FMLA:  Employers who are covered by the Family and Medical Leave Act (“FMLA”) are required to have a policy outlining various issues covered by the law. The handbook is the most common method of distributing that policy to employees. When revising this policy, consider including notification procedures, moonlighting provisions, the best method for calculating the FMLA leave year, and running FMLA leave contemporaneously with other applicable leave laws and policies.
  • Other types of leave:  Pennsylvania has laws relating to jury duty and voting leave as well as laws granting time off in certain instances for witnesses and victims of crime. Make sure your handbook provisions don’t run afoul of such protections.
  • Off-duty conduct:  Pennsylvania does not have a law that specifically protects employees’ legal off-duty conduct. Given that, consider whether any restrictions are worth including in your handbook.

If you have questions about how to incorporate changes to these types of policies in your handbook, please do not hesitate to contact Jeremy Farrell by phone at 412-594-3938 or email at jfarrell@tuckerlaw.com.

July 31, 2023

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