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Tips For Drafting Employee Handbooks – Tip #2: The Importance of Equal Employment Opportunity and Harassment Policies

This article is part two in a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.  Tip #2 addresses how equal employment opportunity and harassment policies are especially beneficial to include in an employee handbook.

Tip #2: The Importance of Equal Employment Opportunity and Harassment Policies

The U.S. Supreme Court has held that an employer’s implementation of an anti-discrimination/anti-retaliation policy can be raised as an affirmative defense to a claim for punitive damages.[1]  The U.S. Supreme Court also has ruled that an employer’s written anti-harassment policy with an effective complaint reporting procedure can support an affirmative defense to certain types of harassment claims.[2]  Thus, employers should include these types of policies in their employee handbooks.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers draft and update their employee handbooks.  If you or your organization would like more information on employee handbooks or employment laws, please contact an

Tips For Drafting Employee Handbooks – Tip #1: Determining the Appropriate Scope and Length

While an employee handbook serves many functions, its primary purpose from a legal standpoint is to reduce potential liability with respect to claims brought by current and former employees.  Unfortunately, many employers are unwilling to commit the time and bear the expense of implementing an employee handbook (or updating an existing handbook) until after they have been sued and the absence (or poor draftsmanship) of a particular written policy has crippled their defense to an employment claim.

This article is part one of a six-part series.  The purpose of this series is to provide tips and identify potential pitfalls associated with the drafting of an employee handbook.  Tip #1 examines factors an employer should consider when determining the appropriate scope and length for an employee handbook.

Tip #1: Determining the Appropriate Scope and Length

There are different schools of thought when it comes to deciding what policies to include in employee handbooks.  Some employers prefer to have a comprehensive employee handbook containing written policies governing virtually all aspects of the employment relationship, while others take the “less is more” approach.  There are pros and cons to each.  A more comprehensive employee handbook helps to ensure consistency in the administration of employment policies throughout an organization, especially if the employer has multiple locations that may utilize different employment practices at the local level in the absence of a written policy.  Thus, a more comprehensive employee handbook often makes sense for larger employers.

On the other hand, small to mid-size employers

ADA Does Not Require Employers to Provide Multi-Month Leave Beyond Expiration of FMLA Leave – Seventh Circuit

This week the 7th Circuit Court of Appeals issued a decision helpful to employers grappling with whether they must extend an employee’s time off following the expiration of Family and Medical Leave Act (FMLA) leave as a reasonable accommodation under the Americans with Disabilities Act (ADA).  See Severson v. Heartland Woodcraft, Inc., No. 15-3754, 2017 WL 4160849 (7th Cir., Sept. 20, 2017).

In Severson, the court found that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.”  Plaintiff, Severson, had a physically demanding job working for a fabricator of retail display fixtures.  Severson took twelve weeks of FMLA leave due to serious back pain.  During his leave, he scheduled back surgery (to occur on the last day of his FMLA leave), and requested an additional three months of leave.  Defendant, Heartland, denied Severson’s request to continue his medical leave beyond the FMLA entitlement, terminated his employment, and invited him to reapply when he was medically cleared to work.  Instead, Severson sued, alleging disability discrimination.

In affirming summary judgment in favor of the employer, the 7th Circuit noted that “[t]he ADA is an antidiscrimination statute, not a medical-leave entitlement.”  Following its earlier decision in Byrne v. Avon Prods., 328 F.3d 379 (7th Cir. 2003), the court also stated that “an employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the ADA.”  In other words, “an extended leave of absence does not give a disabled individual the means

Investigate FMLA Fraud? Absolutely! But…

September 8, 2017

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Courts have repeatedly affirmed employers’ right to investigate the perceived misuse or abuse by employees of leave under the Family and Medical Leave Act (“FMLA”).  After all, while eligible employees have the right to take FMLA leave, employers have the right to ensure that FMLA leave is used only for a proper purpose.

Of course, an investigation may lead to the conclusion that an employee has engaged in FMLA fraud, and thus may result in discipline – even termination – of the employee.  If the employee subsequently pursues a legal claim against the employer, the investigation itself will no doubt be subject to scrutiny, including for purposes of determining whether the employer acted on an “honest belief” that the employee had misused FMLA leave.

Accordingly, here are some tips for conducting an investigation into perceived FMLA fraud:

  • Have a solid basis for initiating an investigation. FMLA investigations should not be undertaken simply because an employee is using, or even exhausting, his or her FMLA leave.  Rather, an investigation is appropriate only if there is a reasonable basis for believing an employee is somehow misusing FMLA leave, such as lying about having a serious health condition or using leave for a purpose other than the purpose for which leave was certified (e.g., to cover absences for a planned trip when a vacation request is denied).  To avoid a perception that the investigation occurred simply to harass the employee and/or discourage the use of FMLA leave, an investigation should occur only

ADA Tip: Remember To Include GINA Safe Harbor Language When Requesting Medical Information For Purposes Of Evaluating An Accommodation Request

Although employers are generally prohibited from obtaining medical information about their employees, they are permitted to do so in certain circumstances, including when such information is necessary to evaluate a job applicant’s or employee’s request for an accommodation under the Americans with Disabilities Act (ADA).

When obtaining medical information as part of the ADA interactive process, however, employers must keep in mind the provisions of the Genetic Information Nondiscrimination Act of 2008 (GINA).  Specifically, GINA protects applicants and employees from discrimination on the basis of genetic information and prohibits covered employers from using genetic information when making decisions about employment.  Accordingly, GINA generally restricts employers from requesting genetic information, unless one of six narrow exceptions applies.

Importantly, intent is not a required element for a GINA violation.  That is, an employer can be found in violation of GINA if the employer obtains genetic information despite not requesting or having any intent to receive such information.

Fortunately, “safe harbor” language can be used to protect an employer against an inadvertent GINA violation.  The following language should be included in any communications in which medical information is requested:

Note:  The information we are seeking relates only to any condition you may have that affects your ability to perform your essential job functions.  Please note that the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed

Think Your PTO Policy Complies With the Chicago or Cook County Paid Sick Leave Ordinances? Think Again.

The City of Chicago’s (the “City’s”) and Cook County’s (the “County’s”) paid sick leave (“PSL”) Ordinances took effect on July 1, 2017, generally requiring employers to provide employees in Chicago and non-opt out locations in Cook County with 40 hours of PSL per year, plus additional PSL for employers/employees covered by the U.S. Family and Medical Leave Act (“FMLA”). Based on “safe harbor” provisions in both Ordinances, many employers are assuming that their Paid Time Off (“PTO”) policies are sufficient – as written – to comply with these new PSL obligations. However, a careful reading of the Ordinances and their respective rules (“Rules”) leads to the inescapable conclusion that almost no traditional PTO policy satisfies the Ordinances’ burdensome and somewhat complex requirements.

Safe Harbor Provisions

Both Ordinances contain a “safe harbor” provision that essentially says that if the employer grants paid time off to employees in an amount and manner that meets the requirements for PSL under the Ordinance, the employer is not required to provide additional paid leave. The final Rules adopted by the City and the County include additional guidance with respect to this issue:

Chicago Safe Harbor Rule, MW 3.01

The Paid Sick Leave portion of the Ordinance has three main categories which must be complied with: (1) accrual / grant of hours of Paid Sick Leave; (2) carryover of Paid Sick Leave from one year to the next; and (3) usage of Paid Sick Leave. Grant of sufficient hours may exempt an Employer from carryover as

Paid Sick Leave Laws – City of Chicago and Cook County, Illinois

The City of Chicago and Cook County have each passed “Paid Sick Leave” ordinances that go into effect July 1, 2017.  See https://www.bryancave.com/en/thought-leadership/new-leave-laws-in-illinois.html

Employers with employees in Chicago (but not other parts of Cook County) need only comply with the City of Chicago ordinance.  Employers with employees in Cook County municipalities other than Chicago need only comply with the Cook County ordinance, although certain Cook County municipalities have opted out of the Cook County ordinance (see list below of municipalities that have NOT opted out).  Employers with locations and employees in both Chicago and other Cook County municipalities would need to comply with both ordinances as applicable to specific employees.

We have been monitoring the ordinances for some time, but there has been a delay in the finalization of the interpretative rules by Cook County and the City of Chicago.  Cook County recently finalized its regulations (which are 46 pages long and more complex than anticipated), but the City of Chicago has not. We expect the City of Chicago to issue final rules within the next week.

Cook County Municipalities That Have NOT Opted Out Barrington Hills (partly in Kane, Lake, and McHenry Counties) Bensenville (partly in DuPage County) Berwyn Blue Island Broadview Brookfield Burnham Calumet City Calumet Park Chicago Heights Chicago Ridge Cicero Country Club Hills Countryside Deer Park (partly in Lake County) Deerfield (partly in Lake County) Des Plaines Dixmoor Dolton East Dundee (partly in Kane County) Elmhurst (partly in DuPage County) Evanston Flossmoor Ford Heights Forest

FMLA Administrators: Have You Checked Out The DOL’s Website Lately?

If you are responsible for administering any aspect of your company’s Family and Medical Leave Act (“FMLA”) policy, from handling leave requests and paperwork to training managers on FMLA compliance, consider spending some time on the U.S. Department of Labor’s FMLA webpage (https://www.dol.gov/whd/fmla/).

The DOL has undertaken efforts to make its FMLA webpage much more user-friendly, for both employees and employers. The FMLA homepage now includes clear links and easy access to:

  • General Guidance materials (such as FAQs and separate employee and employer guides);
  • Fact Sheets (topics range from the meaning of “in loco parentis” to joint employer responsibilities);
  • E-Tools (interactive online tools and presentations about the FMLA);
  • Posters (including the new FMLA poster issued in April 2016; use of the new poster is not yet required, but the information in the new poster has been streamlined and simplified);
  • Forms (consider making it a practice to pull FMLA notices and certification forms from the website each time they are needed, so as to ensure you are using the most recent forms);
  • Interpretive Guidance (such as DOL opinion letters on thorny topics);
  • Law and Regulations (if you’re looking to go directly to the source!).

You’ll likely find it worth your while to spend some time reviewing the above FMLA materials.

We will continue to post FMLA blogs from time to time on Bryan Cave’s L&E blog. You can also find FMLA blogs from the past several years on

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