If not properly drafted, certain policies in your handbook could violate federal, state, and local laws or run counter to best practices. Here are six policies that are potentially problematic along with guidelines to consider instead.

Avoid: Overly restrictive sick leave policies.

Sick leave policies that provide too little paid time off or have overly restrictive rules on use may discourage employees from:

• Staying home when sick or when they have had close contact with someone with COVID-19 or other communicable illnesses; or
• Obtaining a COVID-19 vaccination.

Additionally, many states and local jurisdictions have enacted laws or issued executive orders that entitle employees to paid sick leave and/or paid COVID-19 leave.

Best practice: At a minimum, your policies should comply with applicable leave-law requirements. Even in the absence of a requirement, offering a generous sick leave policy may be more affordable than you think, and the costs might outweigh the benefits. A generous sick leave policy could help prevent illnesses from spreading in the workplace, and it might help improve employee retention and recruitment.

Avoid: A blanket refusal to provide accommodations under COVID-19 vaccination rules.

Federal law requires employers with 15 or more employees to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, don't get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the employer's business. Many states and local jurisdictions have similar laws, some of which cover smaller employers.

In addition, a growing number of states are enacting laws that require employers to provide additional exemptions to COVID-19 vaccination requirements beyond federal law requirements. These laws can be tricky to navigate.

An accommodation is an exception to certain policies or a change in the work environment or the way work is typically done. For example, as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or accept a reassignment.

Best practice: If you implement a COVID-19 vaccination requirement you should handle requests for accommodations on a case-by-case basis. Consult legal counsel to discuss the impact of federal, state, and local vaccination rules on your vaccination policies and practices.

Avoid: Dress codes that prohibit specific hairstyles.

Over the years, employees have filed complaints alleging their employers violated existing nondiscrimination laws by prohibiting them from wearing certain hairstyles. Courts have generally been split on whether restricting certain hairstyles violates laws prohibiting racial discrimination. In response to these cases, several state and local jurisdictions have passed laws that expressly prohibit hairstyle discrimination. Even in the absence of an express prohibition on hairstyle discrimination, enforcement agencies and employees may continue to assert that such discrimination is already barred by laws prohibiting race discrimination. Consider the potential impact of hairstyle restrictions on recruitment, morale, and retention.

Best Practice: To avoid potentially discriminatory practices, consider simply requiring employees to keep hair kempt. However, conscious and unconscious biases may impact what decision-makers view as "kempt," and some may wrongly presume that certain hairstyles are inherently messy or disorderly. Clarify that kempt means that the hair is clean and well combed or arranged, and that employees can comply with a variety of hairstyles, including but not limited to locks, cornrows, and Afros that meet those criteria.

Where employers have legitimate health or safety concerns related to hair, they can generally consider a requirement for hair ties, hair nets, head coverings, and/or alternative safety equipment provided they aren't enforced in a discriminatory manner and don't otherwise violate applicable law.

Avoid: Withholding final pay until company property is returned.

As a general rule, you can't withhold final pay until an employee returns company equipment. You must meet the applicable final pay deadline even if the employee hasn't returned company property. Federal law requires final pay at the next regular payday, but several states have their own rules, some of which require final pay at the time of termination.

Best practice: Whenever possible, reclaim company equipment prior to the employee's last day. While withholding an employee's final paycheck isn't permitted, there are some cases in which deductions may be allowed under federal law. For non-exempt employees (employees who are entitled to minimum wage and overtime), the Fair Labor Standards Act (FLSA) permits deductions for unreturned equipment as long as it does not reduce the employee's pay below the minimum wage and doesn't cut into any overtime pay due. Some states prohibit this practice or have additional requirements, so check your state law before making a deduction. Deductions for unreturned equipment aren't permitted for employees classified as exempt from overtime.

Note: Under the FLSA, employers are generally required to obtain an employee's consent before making a permissible deduction. The agreement must specify the particular items for which deductions will be made (such as company uniforms, equipment, or employee theft) and how the amount of the deduction will be determined. It's a best practice to obtain the employee's authorization in writing and consult legal counsel before making a deduction.

Avoid: Unauthorized overtime/early punch-ins will not be paid.

Under the federal FLSA, non-exempt employees must receive 1.5 times their regular rate of pay for all hours worked over 40 in a workweek (some states require overtime in additional circumstances and at a different rate). If a non-exempt employee has worked overtime, they must be paid an overtime premium, regardless of whether the overtime was pre-authorized. A policy that no overtime work is permitted unless authorized in advance doesn't relieve the employer of this requirement. Similarly, employers may not withhold pay for time worked if the employee punches in before their scheduled start time.

Best practice: Employers may subject the employee to disciplinary measures for working unauthorized overtime, but in no case may the employer withhold overtime pay.

Avoid: Requiring a doctor's note for every sick day.

Most leave laws allow employers to ask employees for reasonable documentation of the need for leave. However, certain laws do have restrictions. For example, some state and local paid sick leave laws prohibit employers from requesting documentation unless the employee has taken sick leave for more than three consecutive days.

Best practice: Even in the absence of a restriction, consider what, if any, documentation would be reasonable to require from employees, and apply your policy consistently. Also keep in mind that certain laws limit the type of medical information an employer can request, and any medical documentation or health information received must be kept confidential and separate from the employee's personnel file.

Conclusion:

With federal, state, and local laws as your guide, make sure you carefully consider what policies to include and what policies to avoid in your employee handbook. Next week, we will address six more policies to avoid.