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2018 Is Here! Time To Review And Update Your Employment Policies

As the calendar has turned over from 2017 to 2018, we have been compiling our annual list of recommended updates and revisions for employer personnel policies and handbooks, based on recent developments in employment laws and related best practices.
We encourage employers to include these updates and revisions on their to-do lists for the new year:

• Pregnancy And Pregnancy-Related Conditions - The Massachusetts Pregnant Workers Fairness Act, which goes into effect April 1, 2018, supplements the state's employment discrimination laws by adding employees who are pregnant or have pregnancy-related conditions (including breastfeeding) as a protected class. Thus, Massachusetts employers should update their listings of protected characteristics to include pregnancy and pregnancy-related conditions.

Criminal Background Checks - The Massachusetts Criminal Offender Record Information ("CORI") regulations were amended effective April 27, 2017. These changes to the regulations require employers to modify their criminal background check processes for applicants and employees in a number of respects. For example, there are new requirements for the collection, use, and destruction of CORI acknowledgement forms. In addition, contractors, subcontractors, and vendors are now included within the CORI statute's definition of "employee." If your organization conducts CORI checks, we recommend updating your CORI policy to address these new requirements.

Salary Inquiries - Effective July 1, 2018, the amended Massachusetts Pay Equity Law will prohibit employers from requesting applicants' salary histories during the hiring process. Massachusetts employers should revise their hiring procedures and protocols to comply with this new restriction.

Pay Disparities -- In addition, the Pay Equity Law will require Massachusetts employers to ensure that male and female employees are compensated equally for jobs involving similar skills, effort, responsibilities, and working conditions, except where pay differentials are based on one or more of a list of specified factors. An employer may be able to shield itself from potential liability under the law by carrying out a self-audit aimed at identifying and rectifying any improper pay disparities. We recently published an article detailing tips for conducting such audits, which can be found here.

• Sexual And Other Harassment - When was your organization's anti-harassment policy last updated? Particularly given the explosion of sexual harassment reports in the media in recent months, it is critical for every employer to have a detailed policy affirming its prohibition of sexual harassment in the workplace and advising employees on what to do if they experience or witness sexual harassment. Furthermore, the policy should prohibit not only sexual harassment, but all forms of harassment based on a protected characteristic. For instance, Massachusetts employers' harassment policies should specifically include gender identity discrimination.

• Retaliation - Retaliation claims continue to predominate among charges filed with the Equal Employment Opportunity Commission and state agencies. In addition, the federal Whistleblower Protection Act was amended in 2017 to provide that an employee who refuses to obey an order that would require the employee to violate a law, rule, or regulation is protected from retaliation. Therefore, it is critical that every employer have a carefully drafted policy prohibiting retaliation against employees who engage in protected activity, such as reporting harassment or filing a charge of discrimination.

• Reasonable Accommodation - Under the American with Disabilities Act and equivalent state laws, employers are required to provide reasonable accommodations for otherwise qualified individuals with disabilities. In a July 2017 decision, the Massachusetts Supreme Judicial Court ("SJC") held that an employee who was terminated after testing positive for marijuana as a result of her lawful medical use of marijuana outside of work to treat Crohn's disease was a "qualified handicapped person" under Massachusetts law. As a result, the SJC concluded, the employer was required to engage in an interactive process with the employee to determine if a reasonable accommodation for her medical use of marijuana could be found. In light of this decision, Massachusetts employers should consider, in consultation with counsel, whether employees' medical use of marijuana may need to be accommodated. In addition, we recommend that every employer ensure that it has a written policy detailing how employees should request workplace accommodations for disabilities and how those requests will be evaluated.

• Paid Leave - Finally, a growing number of states, cities, and municipalities have enacted legislation providing for paid sick and/or family leave. For instance, effective January 1, 2018, a new law gives most employees in New York State the right to take up to eight weeks of paid family leave (increasing to twelve weeks by 2021). Employers should ensure that their leave policies comply with all paid leave laws in the states and municipalities in which they operate.

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We understand that updating your organization's employee handbook and personnel policies each year can be a daunting task. We are here to help! We would be happy to audit your current handbook and make specific recommendations about updates and revisions. Please contact us for more information about our handbook audit process, or if you have questions about any of the issues identified above.