A post-pandemic company handbook: How small business owners can guard against lawsuits

Thanks to the COVID-19 pandemic, compiling a company handbook is even more complex than it used to be—often involving remote work guidelines, Zoom meetings and vaccine considerations.

Here ‘s what small business owners should consider including, according to labor and employment lawyer Michael Landen, who’s a partner at Kluger, Kaplan, Silverman, Katzen & Levine in Miami. There, Landen handles and litigates issues including employment contracts, harassment claims, non-compete agreements, handbooks and policies.

What legal challenges have employers faced around COVID-19 vaccine mandates, and what should they consider if they are contemplating requiring vaccines?

Although the Supreme Court partially blocked the Biden administration from enforcing its vaccine-or-test requirements for large private companies, as we have seen, many companies have implemented their own rules and vaccine mandate for employees. And while there are advantages to having a vaccinated workforce, employers who require COVID-19 vaccination can potentially open themselves to a lawsuit or other issues.

Under Florida law, employers can mandate vaccinations if there is a legitimate business requirement for doing so, which means that employers must prove that receiving the vaccine is integral to an employee performing the functions of his or her position. Outside of health care-related jobs, workplace situations in other industries can be a bit more difficult for employers to require vaccinations. The goal of simply having a healthy workforce alone is likely an inadequate justification for a companywide vaccine mandate.

Businesses that have successfully operated remotely should also continue to weigh additional considerations. For example, employees may argue that they would rather continue to work remotely than to get vaccinated and return to in-person work. The burden falls on employers to prove that in-person work is a necessary part of their businesses.

Additionally, Florida companies that decide to mandate the COVID vaccine need to be careful. Under the Florida legislation passed in November, employees can choose from certain exemptions if a private employer implements a vaccine mandate, including but not limited to health or religious concerns.

As an alternative to vaccination requirements, employers still may have the ability to require these employees to wear masks or other PPE or submit to testing. However, employers must be careful with these issues and should consult an employment attorney for advice and guidance.

Moreover, if an employee can prove that he/she is at risk for a severe reaction and cannot get the vaccine, the employee may be protected by the Americans with Disabilities Act (ADA). In such cases, an employer would need to consider making a reasonable accommodation to allow such employees to continue to work without a vaccine. Failing to make a required accommodation could make the employer vulnerable to a potential lawsuit.

These are all important considerations which should be fully explored by all employers, especially given the ever-changing workplace landscape in light of COVID concerns.

Do companies need to update their written policies to account for vaccine expectations, sick time, etc.?

Yes, companies should update their written policies to account for vaccine expectations and sick time. Employers who are quicker to adopt new protocols and update their company handbooks could mitigate potential liability and employment disputes.

What should employers consider when updating a company handbook in light of the shift to remote work and hybrid work models?

If an employer has implemented new COVID-19-related processes or requirements, the information should be clearly stated in the company handbook and openly communicated with employees. Likewise, changes to work hours and platforms are best reflected in an updated handbook or policy manual.

With some businesses offering permanent work-from-home options, the updated handbook should address remote work guidelines such as best practices for telecommunications, documentation requirements and remote meeting guidance.

Employers should also address what security controls and data protection practices need to be implemented, as businesses have adopted more Cloud-platforms while working remotely. With personnel managing and accessing intellectual property, confidential and personal information from a remote-work environment, clear protocols and security controls should be reviewed. Handbooks should outline plans for updating passwords and maintaining up-to-date security, enabling router encryptions and sourcing trusted networks.

Lastly, company handbooks should also articulate expectations for dress code and other policies for in-person work environments, such as if employees will be required to wear masks in common areas, at personal workspaces, or when interacting with coworkers and customers. Handbooks should also outline at-home dress code requirements for Zoom or other virtual meetings for employees who are able to work remotely.

What other trends are you seeing within employment law?

Many employers are finding it hard to hire because of the lack of available labor. Also, companies need to be more careful now than ever with properly conducting terminations since, unfortunately, there has been a shift where employees look to immediately sue upon termination—many times without having suffered discriminatory conduct or other actions which could make a company liable. In other words, suing a former employer has become all too common.

Employers need to be careful to properly document employee performance issues and to have in place sufficient workplace rules, handbooks and other documentation to protect employers in connection with these types of claims. Therefore, it is very important that employers consult with their employment counsel to assist with these issues.

Michael Landen is a partner at Kluger, Kaplan, Silverman, Katzen & Levine in Miami. He focuses his practice on commercial litigation and labor and employment law.

Related:

• Half a dozen ways to combat workplace harassment
• Vaccine mandates & employment practices liability insurance
• How agents and brokers can best advise new business owners