4-21-408 - Leave for adoption, pregnancy, childbirth and nursing an infant. - Tennessee Statutes

4-21-408. Leave for adoption, pregnancy, childbirth and nursing an infant.

(a)  Employees who have been employed by the same employer for at least twelve (12) consecutive months as full-time employees, as determined by the employer at the job site or location, may be absent from such employment for a period not to exceed four (4) months for adoption, pregnancy, childbirth and nursing an infant, where applicable, referred to as “leave” in this section. With regard to adoption, the four-month period shall begin at the time an employee receives custody of the child.

(b)  (1)  Employees who give at least three (3) months' advance notice to their employer of their anticipated date of departure for such leave, their length of leave, and their intention to return to full-time employment after leave, shall be restored to their previous or similar positions with the same status, pay, length of service credit and seniority, wherever applicable, as of the date of their leave.

     (2)  Employees who are prevented from giving three (3) months' advance notice because of a medical emergency that necessitates that leave begin earlier than originally anticipated shall not forfeit their rights and benefits under this section solely because of their failure to give three (3) months' advance notice.

     (3)  Employees who are prevented from giving three (3) months' advance notice because the notice of adoption was received less than three (3) months in advance shall not forfeit their rights and benefits under this section solely because of their failure to give three (3) month's advance notice.

(c)  (1)  Leave may be with or without pay at the discretion of the employer. Such leave shall not affect the employees' right to receive vacation time, sick leave, bonuses, advancement, seniority, length of service credit, benefits, plans or programs for which the employees were eligible at the date of their leave, and any other benefits or rights of their employment incident to the employees' employment position; provided, that the employer need not provide for the cost of any benefits, plans or programs during the period of such leave, unless such employer so provides for all employees on leaves of absence.

     (2)  If an employee's job position is so unique that the employer cannot, after reasonable efforts, fill that position temporarily, then the employer shall not be liable under this section for failure to reinstate the employee at the end of the leave period.

     (3)  The purpose of this section is to provide leave time to employees for adoption, pregnancy, childbirth and nursing the infant, where applicable; therefore, if an employer finds that the employee has utilized the period of leave to actively pursue other employment opportunities or if the employer finds that the employee has worked part time or full time for another employer during the period of leave, then the employer shall not be liable under this section for failure to reinstate the employee at the end of the leave.

     (4)  Whenever the employer shall determine that the employee will not be reinstated at the end of the leave because the employee's position cannot be filled temporarily or because the employee has used the leave to pursue employment opportunities or to work for another employer, the employer shall so notify the employee.

(d)  Nothing contained within the provisions of this section shall be construed to:

     (1)  Affect any bargaining agreement or company policy that provides for greater or additional benefits than those required under this section;

     (2)  Apply to any employer who employs fewer than one hundred (100) full-time employees on a permanent basis at the job site or location; or

     (3)  Diminish or restrict the rights of teachers to leave pursuant to title 49, chapter 5, part 7, or to return or to be reinstated after leave.

(e)  The provisions of this section shall be included in the next employee handbook published by the employer after May 27, 2005.

[Acts 1987, ch. 373, § 1; T.C.A., §§ 50-1-501 50-1-505; Acts 1988, ch. 607, §§ 1-3; 1991, ch. 430, § 1; 2005, ch. 224, § 1.]