4 Ways Poorly Drafted Employment Policies Can Lead to Legal Problems: Techniques to Avoid Issues
Employment policies with unclear language or ambiguous standards create significant legal vulnerabilities for organizations. This practical guide examines four common policy pitfalls that HR professionals must address to maintain compliance and protect their companies. Drawing on insights from legal and human resource experts, the article provides actionable techniques to strengthen policy language and minimize litigation risk.
Define Inclusive Terms in Mental Health Policies
The situation where poor policy drafting created massive problems involved an employer's sick leave policy that said employees could take time off for illness without specifying whether mental health conditions qualified. At AffinityLawyers, my client denied extended leave to an employee experiencing depression and anxiety, citing that the sick leave policy only covered physical illness, which resulted in a successful human rights complaint for disability discrimination. I think that what made this expensive was that the ambiguous policy language let the employer believe they were following their own rules while simultaneously violating human rights legislation that treats mental health equally to physical health. The specific problem was that the policy used terms like medical illness and physical incapacity without defining whether those included psychological conditions, which the tribunal interpreted against the employer under basic contract principles. What this situation taught me was that employment policies need explicit inclusive language rather than relying on general terms that employers interpret narrowly while tribunals interpret broadly in favor of employees. The drafting technique I use now is defining every potentially ambiguous term and including specific examples of what policies cover, like stating that illness includes both physical and mental health conditions with examples such as depression, anxiety, and stress related disorders. My advice is that vague employment policies always get interpreted against employers during disputes, so investing extra time clarifying definitions and providing examples prevents expensive litigation over policy language that seemed clear when you wrote it but becomes ambiguous when employees and lawyers scrutinize every word looking for favorable interpretations.
Risk-Mapping Approach Prevents Remote Work Liabilities
In one case I handled, a client faced a major dispute because their remote work policy lacked clear boundaries on working hours and data security expectations. An employee, working irregular late-night hours from multiple locations, inadvertently exposed sensitive client data. Because the policy did not define acceptable working environments or require use of secured networks, the employer was left vulnerable—not just to a labor claim over work hours, but also to a potential data breach liability under GDPR-equivalent standards.
Since then, I've adopted a risk-mapping approach to policy drafting. This means identifying operational, compliance, and reputational risks for each clause and integrating scenario-based language—addressing "what if" situations clearly and proactively. I also now ensure that policies are cross-reviewed by IT and compliance teams, not just HR, to prevent siloed blind spots.
The key takeaway: employment policies should be treated as dynamic governance tools, not static checklists. Precision and interdisciplinary review are what make them enforceable and resilient.
Structure Objective Standards for Discretionary Decisions
One case that stands out involved an internal "light-duty accommodation" policy that attempted to outline how injured employees could return to work. The policy stated that modified duties "may be provided at management discretion," without any defined criteria, timelines, or reference to statutory obligations. When an employee recovering from a workplace injury requested a temporary adjustment to duties and was denied, the ambiguity in that single sentence became the central legal issue.
The absence of objective standards allowed the claimant to argue that decisions were arbitrary and discriminatory. The employer, despite acting in good faith, faced a costly dispute because the policy lacked measurable guidance and failed to show consistency in decision-making. Ultimately, the matter was resolved through settlement and a full policy overhaul, but not before reputational exposure and operational disruptions had taken their toll.
Every discretionary decision must be anchored to clear, objective triggers: defined eligibility factors, mandatory documentation processes, explicit response timelines, and unambiguous alignment with legal standards. The goal is not to remove managerial judgment, but to document the framework in which that judgment operates.
Policies written with structured definitions and verifiable steps reduce room for subjective interpretation, provide stronger legal defensibility, and give employees confidence that policies are applied consistently and fairly. Over time, that clarity reduces disputes, improves compliance, and protects the business from avoidable litigation
Clear Language Avoids Paid Leave Misunderstandings
Based on an unclear paid-time-off policy (which we had not drafted), one of our client's employees believed she still had paid sick days she could use when, in fact, she had exhausted all of her paid time off. The company's policy combined all types of leave under a single 10-day cap, which is permissible under New Jersey law, where our client is located. Unfortunately, because the policy wasn't clearly written, the employee sued our client when she was denied paid sick leave after she had exhausted the full 10 days of paid time off for that year. This reinforces how critical it is to spell out exactly what employees are entitled to, that is, how many days of paid time off per year, under what circumstances they can take those days, and how different types of leave may overlap. We have since revised this client's paid-time-off policy to be sure it's written in plain language and is crystal clear that the 10 days of paid time off include the five days of sick leave required under New Jersey law.
