Military Service – Tennessee Laws
Public employees have the right to a leave of absence for the purpose of being inducted or otherwise entering military duty. Municipal employees are among the public employees guaranteed re-employment rights after active or reserve military service if still physically qualified to perform the duties of such position. If the employee is not qualified to perform the duties of such position by reason of disability sustained during such service, such public employee shall be placed in such other position, the duties of which the employee is qualified to perform. T.C.A. §§ 8-33-101 – 8-33-105.

Members of reserve components of the U.S. armed forces (including members of the Tennessee Army and the Air National Guard) are entitled to leaves of absence while engaged in "duty or training in the service of this state, or of the United States, under competent orders." They must be given such leave with pay not exceeding twenty (20) working days in any one calendar year, including weekends if regularly scheduled for work. The intent of the pay provision is to allow employees to receive their regular pay, in addition to military pay, for two-week summer training camp and for weekends an employee is regularly scheduled for work but has military duty. During this 20-day period, the employee continues to earn regular pay, service credit, applicable annual and sick leave accruals, and all other rights and benefits to which the employee is otherwise entitled continue. In addition, this section allows public employers to provide partial compensation to employees while serving under competent orders, in addition to the 20 working days of compensation referred to above. After the twenty (20) working days of full compensation, members of any reserve component of the armed forces of the United States, including members of the Tennessee Army and Air National Guard, may use up to five (5) days of sick leave in lieu of annual leave for the purposes of not having to take leave without pay. T.C.A. § 8-33-109.

T.C.A. § 8-33-110 entitles a state or local government employee who is also a member of the Tennessee Army and Air National Guard on active duty or Tennessee State Guard and Civil Air Patrol to an unpaid leave of absence without loss of time, pay, or leave for all periods of service during which they are engaged in the performance of duty or training under competent orders.

This Tennessee Military Leave Law is an additional benefit of the job protection granted to all employees engaged in military service separate and apart from the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. § 43. Under federal and state laws, all employees who are members of any reserve component of the armed forces of the United States or of the Tennessee National Guard are entitled to a leave of absence from their duties for all periods of military service during which they are engaged in the performance of duty or training. The duty or training must be in the service of the state or the United States under competent orders as stipulated in 38 U.S.C. §§ 4311-4318, T.C.A. §§ 8-33-101 – 8-33-109, and T.C.A. § 58-1-106.

An employee or applicant for employment, who performs, applies to perform, or has an obligation to serve in a uniformed service shall not, on that basis, be denied employment or re-employment or be discriminated or retaliated against for such service or application for service in any manner.

“Military Duty” means:

• Training and service performed by an inductee, enlistee, or reservist or any entrant into a temporary component of the armed forces of the United States;
• Time spent reporting for and returning from such training and service, or if a rejection occurs, from the place of reporting for such training and service; and
• Active duty training as a reservist in the armed forces of the United States or as a member of the National Guard when the call is for training only.

Frequently Asked Questions
Q: Does this apply to part-time employees?
A: Yes, the law applies to all public employees equally without regard to number of hours worked. However, the employer would only pay the employee for the actual hours the employee would have normally worked had he/she not been deployed. The Tennessee Attorney General stated in Opinion No. 00-093 that the act applies to part time employees, since that class of employees is not excluded in the statutory language.

Q: We have public safety employees who work different shifts (i.e., 24/48) and generally work more total hours per year than standard 8-5 positions. How much time do we provide to them under this law?
A: The Tennessee Legislature did not address work schedules in the language and makes no distinctions between different classes or work schedules of employees. At this time there have been no court cases in Tennessee that provide clarification.

However, the Tennessee Supreme Court has outlined the rules of statutory construction as follows:

A "basic rule of statutory construction is to ascertain and give effect to the intention and purpose of the legislature.” Carson Creek Vacation Resorts, Inc. v. State Dep't. of Revenue, 865 S.W.2d 1,2 (Tenn. 1993). In determining legislative intent and purpose, a court must not “unduly restrict[ ] or expand[ ] a statute's coverage beyond its intended scope. Worley v. Weigels, Inc., 919 S.W.2d 589, 593 (Tenn.1996) (quoting Owens v. State, 908 S.W.2d 923, 926 (Tenn. 1995)). Rather, a court ascertains a statute's purpose from the plain and ordinary meaning of its language, see Westland West Community Ass'n. v. Knox County, 948 S.W.2d 281, 283 (Tenn. 1997), “without forced or subtle construction that would limit or extend the meaning of the language.” Carson Creek Vacation Resorts, Inc., 865 S.W.2d at 2.

When, however, a statute is without contradiction or ambiguity, there is no need to force its interpretation or construction, and courts are not at liberty to depart from the words of the statute. Hawks v. City of Westmoreland, 960 S.W.2d 10, 16 (Tenn. 1997). Moreover, if “the language contained within the four corners of a statute is plain, clear, and unambiguous, the duty of the courts is simple and obvious, ‘to say sic lex scripta, and obey it.’ ” Id. (quoting Miller v. Childress, 21 Tenn. (2 Hum.) 320, 321–22 (1841)). Therefore, “[i]f the words of a statute plainly mean one thing they cannot be given another meaning by judicial construction.” Henry v. White, 194 Tenn. 192, 198, 250 S.W.2d 70,72 (1952).

Finally, it is not for the courts to alter or amend a statute. See Town of Mount Carmel v. City of Kingsport, 397 S.W.2d 379, 382 (1965); see also Richardson v. Tennessee Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995); Manahan v. State, 219 S.W.2d 900, 901 (1949). Moreover, a court must not question the “reasonableness of [a] statute or substitut[e][its] own policy judgments for those of the legislature.” BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d 663, 673 (Tenn. Ct. App. 1997). Instead, courts must “presume that the legislature says in a statute what it means and means in a statute what it says there.” Id. Accordingly, courts must construe a statute as it is written. See Jackson v. Jackson, 210 S.W.2d 332, 334 (1948).

Gleaves v. Checker Cab Transit Corp., 15 S.W.3d 799, 802–03 (Tenn. 2000). Based on the plain language of the statute and the legislative history, other state agencies and MTAS attorneys have interpreted a “day” to be all hours worked on a particular day, which could be 0 hours or 24 hours.

Q: Does this apply to members of the Tennessee Army and Air National Guard?
A: Yes. Refer to Attorney General Opinion No. 01-169, which indicates that the act applies to members of the Tennessee Army and Air National Guard, regardless of whether they are mentioned in the statutory language.

Q: Are there any Tennessee cities that are exempt from having to provide this benefit?
A: No. All Tennessee cities and towns must comply with this law.

Q: If an employee who has not completed the city’s probationary period is deployed, is he entitled to the 20 days of leave?
A: Any officer or employee is entitled to military leave pursuant to T.C.A. § 8-33-109. The statute explicitly says that the leave is “unaffected by date of employment or length of service” of the employee. Hence, despite any definition this specific language ensures that all employees and officers are granted this leave. Furthermore, the definition is for “public employee” and the language of Section 109 uses only “employee.”