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for protecting workers, including under the COVID-19 National Emphasis Program and General Duty Clause.” OSHA is also pursuing a permanent standard for the healthcare industry to protect workers from COVID-19 hazards and is considering broader infectious disease rulemaking. The agency has launched a COVID-19 focused inspection initiative limited to certain healthcare facilities that will cover the three-month period from March 9, 2022 to June 9, 2022. To date, OSHA has fined employers over $4,034,288 through COVID-related citations. Therefore, all employers may want to appropriately address workplace safety and health in their handbooks and in more detailed procedures that may be best kept separately from the handbook.

A handbook safety and health policy should not take the place of separate safety manuals or detailed procedures. Instead, the handbook policy could include more general information regarding: the responsibility of every employee to work safely, follow all safety and health procedures applicable to their jobs (and how to access them), to report any potential safety and health hazards in the workplace, and to report any work-related accidents, injuries, and illnesses as soon as reasonably possible. The handbook policy might also include a clear reporting procedure and a provision that states employees will not be retaliated against for making such reports. Because of the rapidly evolving guidance and legislation regarding COVID, employers may want to keep COVID-related policies and procedures separate from the handbook. This would eliminate the need to update the handbook each time COVID policies change, which may be an administrative burden for some employers. Now that Democrats once again have a majority on the National Labor Relations Board (“NLRB”), it will come as no surprise that they may seek to roll back current Trump-era Board policies and return to policies that favor employees and labor unions. We can reasonably expect the pendulum to swing back toward the Obama administration practice of issuing decisions scrutinizing handbook policies under the National Labor Relations Act (“NLRA”). Thus, employers should watch out for any NLRB decisions on this issue and review handbook polices, including social media/IT, dress code, conflict of interest confidentiality, and related policies, to ensure compliance.

5.Contractual Issues to Consider

Including a disclaimer at the beginning of the handbook expressly stating it does not constitute a contract and reiterating the at-will nature of the employment relationship can be an important tool in defending claims. Similarly, contracts and other legally binding agreements should not be added to the handbook. This includes non-compete, non-solicitation, and non-disclosure clauses as well as arbitration agreements and other releases of liability, which should be kept separate from the handbook to ensure enforceability and avoid the entire handbook being construed as a contract.

Dee Anna Hays is a Shareholder and Chair of the Multistate Practice Group at Ogletree Deakins. She can be contacted by email at deeanna.hays@ogletree.com.

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