One of the most difficult recurring problems for employment lawyers is the employee who requests an extended unpaid medical leave with the expectation that she be able to return to work when medically cleared months later. The common fact pattern involves an employer subject to the Family and Medical Leave Act (FMLA) being informed that an employee who is about to exhaust her 12 weeks FMLA leave still is not able to return to work due to a medical condition. The FMLA only guarantees to employees a maximum of 12 weeks unpaid leave within a 12 month period. It does not require an employer to extend that leave, nor does it penalize the employer for terminating an employee who is unable to return to work after exhaustion of FMLA leave.
In Our Judgment
Providing insight on developments in labor and employment law affecting East Tennessee employers and employees.
The United States Citizenship and Immigration Services (USCIS) has released a revised version of Form I-9, Employment Eligibility Verification. All employers are expected to use the revised form by September 18, 2017. Failure to use the new form after that date will constitute non-compliance with federal law and may subject the employer to potentially significant fines by USCIS.
On July 1, 2017, over 130 new laws recently enacted by the Tennessee legislature became effective. One of those imposes new reporting requirements on employers in the healthcare sector whose licensed healthcare employees test positive on a drug test or refuse to submit to a drug test when directed to do so.
As an employment lawyer, I tend to focus a substantial part of my time on the consequences that may follow employee terminations that are involuntary. From time to time, however, questions do arise in the context of voluntary resignations. For instance, I am occasionally asked whether an employer must allow a resigning employee to continue her employment for a limited period of time following a notice of resignation. The common situation is when an employee says, “I am giving you my 2-week notice.” Similarly, an employee may inform her supervisor on May 1, “I am leaving for another opportunity. My last day of work will be May 15.”
In the last 9 months, I have twice posted on efforts by the Equal Employment Opportunity Commission (EEOC) and a number of private litigants to have federal courts construe federal statutory protections against certain forms of workplace discrimination to include discrimination on the basis of sexual orientation. Title VII of the Civil Rights Act of 1964 makes it unlawful for employers subject to the Act to discriminate against employees on account of “race, color, religion, sex, or national origin. . ..” During the last 40 years, a number of federal courts, including federal appellate courts, regularly rejected efforts to interpret the term “sex” as including sexual orientation and thereby refused to extend anti-discrimination protections to LGBT employees. This was often done on a perfunctory basis and without much reflection or debate on the question.