Posted by Melissa Fleischer, Esq. on Feb 1st 2016

As we start the New Year, employers would be wise to conduct an audit of their employee handbooks to make sure they are up-to-date and legally compliant.  What are some of the top issues you will want to be aware of regarding potential changes for 2016?  There are many.

First and foremost, you will want to make sure that you have an accommodation policy that includes making accommodations for pregnant employees.  The EEOC recently issued a guidance making clear that although a normal pregnancy is not considered a disability under the ADA, most pregnancy-related conditions would be considered to be impairments that would substantially limit a major life activity.  Thus, employers need to make sure they have well-drafted ADA accommodation policies that include making accommodations for pregnancy-related impairments.  In addition, more and more states and localities are passing laws requiring employers to provide accommodations for pregnant employees such as Rhode Island, North Dakota, Illinois, District of Columbia, Nebraska, New Jersey and effective January 19, 2016, New York.  In addition to ensuring that your accommodation policy includes pregnant workers, you should also ensure that you are providing training to your managers so they understand that when a pregnant employee requests an accommodation, they don’t refuse to provide such accommodation because they fail to understand that this is now required.  Some of the accommodations you might have to provide include making changes to facilities, equipment or furniture, providing a leave of absence even after 12 weeks of FMLA leave, providing light duty, acquiring or modifying equipment or devices, job restructuring, providing part-time or modified work schedules, reassignment to a vacant position, adjusting or modifying examinations, training materials or policies, and providing readers and interpreters.  Sometimes even allowing an employee to work remotely can be a reasonable accommodation required by the ADA (Americans with Disabilities Act) and/or the PDA (Pregnancy Discrimination Act).

While we are on the topic of pregnancy, important to remember that one of the changes that the Affordable Care Act provided was the new requirement that employers provide nursing mom’s with “reasonable break time” to express breast milk at work.  They should also provide a lactation room in which to express milk that is not a rest room and that has at least a sink and refrigerator to store expressed milk.  A policy notifying employees of this right should be included in your employee handbook.  There are some state laws such as in New York that actually require employers to provide notice of this right to employees in the employee handbook.

Another change you need to watch out for and make sure you have correct in your 2016 employee handbook is to make sure that you have revised your FMLA policy to include same-sex spouses in the definition of spouse.  This is based on the Supreme Court’s decision overturning Section 3 of DOMA (Defense of Marriage Act) in addition to the Notice of Proposed Rulemaking in which the DOL set forth that same-sex spouses can take FMLA to care for their same-sex spouse with a serious health condition if the state in which they celebrated their marriage recognizes same-sex marriage.  This combined with the Supreme Court’s ruling that states can no longer prohibit same-sex marriage requires an update to your FMLA policy to include same-sex spouses under the definition of spouse for purposes of FMLA.

In addition, with more and more laws being passed legalizing “medical marijuana” it is important for you to understand what changes you will need to make to your drug-free workplace policies within your employee handbooks.  The answer is that you are still well within your rights in prohibiting an employee from being under the influence of marijuana or from using marijuana in the workplace even if they do so as a result of being a medical card holder allowed to use marijuana lawfully in that state.  Additionally, in most states that have legalized medical marijuana, it is still lawful for an employer to refuse to hire an applicant that tests positive for marijuana even if the reason why the applicant tested positive is because the applicant uses marijuana for medicinal purposes.  However, in a handful of states including Arizona, Connecticut, Delaware, Maine, Massachusetts, Rhode Island and Illinois it could be alleged to be discriminatory and unlawful to refuse to hire an applicant who tests positive on a pre-employment drug test if they tested positive because they are a medical marijuana card holder.  If you are in one of these states, you will want to consult with your legal counsel as to the best way to revise your drug-free workplace policy to ensure compliance with these state laws.

Without a doubt, the most important issues facing employers in the coming year are the proposed revisions to the Fair Labor Standards Act (“FLSA”).  On July 6, 2015 the Department of Labor issued proposed revisions to the FLSA that do several important things.  The first thing they do is to increase the salary threshold for the salary level test for determining who is an exempt employee from the prior threshold of an employee making not less than $455 to the proposed new threshold of an employee making not less than $970 a week.  The proposed revisions also will be raising the salary threshold for those who qualify as exempt based upon being a highly compensated employee from those earning at least $100,000 per year to those earning at least $122,148 a year.  In addition to these two salary threshold changes, the proposed revisions to the FLSA will also include some type of mechanism by which the salary level thresholds can be automatically increased each year without the necessity of revising the FLSA.  They have proposed using the Consumer Price Index or some other type of mechanism to allow the thresholds to be automatically increased each year.   The DOL has also requested comments on the possibility of changing the duties test for the white-collar exemptions similar to the California state wage and hour law so that a person would have to be engaging in their “primary duty” at least 50% of the time or more to qualify as exempt.  However, no specific changes to the duties test have been proposed although they have put the public on notice so that if they did want to make such a change, they would be able to.

No one is certain when these FLSA changes will be effective.  However, employers need to start preparing because these changes mean that employers will face the choice of either having to raise the salary of their currently exempt employees to the new threshold of making not less than $970 a week or face the alternative of paying more overtime to their employees who will now fall above $455 a week but below $970 a week and thus have to change from being classified as exempt to now being non-exempt under the proposed revisions.  Employers who are unprepared for these proposed revisions could end up paying significantly more overtime to their employees.

As is evident, there are many changes in 2016 coming down the road.  Clearly, employers need to conduct an audit of their policies and procedures to ensure that they are legally compliant and best protected based on the upcoming changes necessary in 2016.