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Summary of differences between federal and state regulations
In addition to the federal FMLA, Tennessee employers need to be aware of state provisions such as parental leave or state employee paid leave.
Parental leave
Tennessee’s parental leave provisions apply to employers with 100 or more full-time employees on a permanent basis at the job site or location. The federal FMLA applies to private employers with 50 or more employees and to all public employers.
Employee eligibility
Employees are eligible for leave if they have been employed by the same employer for at least 12 consecutive months as full-time employees, as determined by the employer at the job site or location.
Leave entitlement
Eligible employees are entitled to up to four months of leave. Leave under Tennessee law may run concurrent with the federal FMLA as long as the employee is eligible for both types of leave and the reason qualifies for both.
Leave may be with or without pay at the discretion of the employer. The leave will not affect the employees’ right to receive vacation time, sick leave, bonuses, advancement, seniority, length of service credit, benefits, and any other benefits or rights of their employment.
If an employee is found to have worked for another employer during leave, the employee may risk not being reinstated at the end of leave. The employer would need to notify the employee of this determination.
The employer would also need to notify an employee if the employer determines that the employee will not be reinstated at the end of leave because the employee’s position cannot be filled temporarily.
Reasons for leave
An eligible employee may take leave for:
- Adoption,
- Pregnancy,
- Childbirth, and
- Nursing an infant.
Unlike the FMLA, there are no provisions for foster care placement or a serious health condition.
Maintenance of health benefits
Employers do not need to pay for the cost of any benefits, plans, or programs during an employee’s period of leave unless they do so for employees on other types of leave.
The FMLA, however, requires that covered employers continue to provide group health insurance.
Job restoration
Similar to the FMLA, Tennessee requires that an employee returning to work from leave be restored to the same or similar position, but only if the employer was given at least three months’ advance notice of the leave, the length of leave, and the intention to return to full-time employment after leave. An employee who cannot give three months’ advance notice because of a medical emergency which requires leave to begin early cannot be denied job restoration rights.
Also, if an employee’s job position is so unique that the employer cannot, after reasonable efforts, temporarily fill that position, then the employer does not have to reinstate the employee at the end of the leave period.
Notice
To be eligible for full job restoration benefits, an employee must give the employer at least three months’ advance notice before leave is to begin, along with information on the length of leave and the intention to return to full-time employment after leave.
Employers must include related information in an employee handbook.
TN Pregnant Workers Fairness Act
While not a leave law, the TN Pregnant Workers Fairness Act requires TN employers with 15 or more employees to provide reasonable accommodations for the medical needs arising from pregnancy, childbirth, or related medical conditions of an applicant for employment or an employee. Employers are not, however, required to provide a reasonable accommodation that would impose an undue hardship.
Reasonable accommodation may include:
- Making existing facilities used by employees readily accessible and usable;
- Providing more frequent, longer, or flexible breaks;
- Providing a private place, other than a bathroom stall, to express milk;
- Modifying food or drink policy;
- Providing modified seating or allowing the employee to sit more frequently if the job requires standing;
- Providing help with manual labor and limits on lifting;
- Authorizing a temporary transfer to a vacant position;
- Providing job restructuring or light duty, if available;
- Acquiring or modifying equipment, devices, or an employee's workstation;
- Modifying work schedules; and
- Allowing flexible scheduling for prenatal visits;
Time off, therefore, can be a reasonable accommodation.
"Undue hardship” means an action requiring significant difficulty or expense.
Employers may, if required of other employees with medical conditions, request that an employee with a medical need relating to pregnancy, childbirth, or related medical conditions provide medical certification from a healthcare professional if the employee is requesting a reasonable accommodation related to temporary transfer to a vacant position, job restructuring, or light duty, or an accommodation that requires time away from work.
Employers should treat employees with these needs as they would other employees or a class of employees that need a reasonable accommodation.
State employee paid leave
State employees of the executive branch are entitled to paid leave. (Effective 3/1/2020)
Employee eligibility
Employees of the executive branch who have been employed with the state for one year and worked at least 1,250 hours in the past 12 months.
Leave entitlement
Eligible employees may take up to 12 weeks of leave within 12 months immediately following the qualifying event, depending upon event. Intermittent leave is allowed, but the leave must be used within 12 months of the qualifying event.
This leave may run concurrent with federal FMLA leave and any other leave to which the employee may be entitled as a result of the qualifying event.
The leave is 100% paid, and it must not count against an employee’s annual, sick, or comp leave balances.
Employees do not, however, accrue annual, sick, or comp leave while using paid family leave.
Reasons for leave
The reasons that qualify for paid leave mirror those of the federal FMLA:
- The birth of the employee’s child;
- The placement of a child with the employee for adoption or foster care;
- The need to care for the employee’s spouse, son, daughter, or parent with a serious health condition;
- The employee’s own serious health condition;
- Qualifying exigencies caused by a family member’s military duty; and
- To care for a family member with a military-related serious injury or illness.
Job restoration
The law does not indicate any provisions.
Notices
The law does not indicate any provisions.
Voluntary paid family leave
Employers may purchase insurance, effective on or after January 1, 2024, that would provide for paid family leave. The insurance covers against risk related to paid family leave in accordance with rules adopted by the commissioner of commerce and insurance.
Family leave insurance may be written as:
- An amendment or rider to a group disability income policy or life insurance policy, included in a group disability income policy or life insurance policy; or
- A separate group insurance policy purchased by an employer.
Employees would pay a percentage or portion fo their income for the benefit.
The policy would include the details and requirements such as employee eligibility, leave entitlement, reinstatement, concurrency with federal FMLA, and intermittent leave.
Qualifying reasons
- The birth or adoption of a child by the employee;
- Placement of a child with the employee for foster care;
- Care of a family member of the employee who has a serious health condition.
- The status of a family member of the employee who is a service member on active duty or who has been notified of an impending call or order to active duty.
A serious health condition is an illness, injury, impairment, or physical or mental condition, including transplantation preparation and recovery from surgery related to organ or tissue donation, that involves inpatient care in a hospital, hospice, or residential healthcare facility, continuing treatment, or continuing supervision by a healthcare provider as defined in an issued insurance policy.
State contacts
Department of Labor & Workforce Development
www.tn.gov/workforce/
Human Rights Commission
www.tn.gov/content/tn/humanrights.html
TN Department of Human Resources
https://www.tn.gov/hr.html
Department of Commerce and Insurance, Insurance Division
State statutes/regulations
Tennessee Code Annotated 4-21-408 et seq., Leave for adoption, pregnancy, childbirth, and nursing an infant www.tn.gov/humanrights/laws-and-regu1/maternity-leave1.html
Tennessee Code Annotated 50-10-101 et seq., Tennessee Pregnant Workers Fairness Act
Lexis
https://www.tn.gov/revenue/tax-resources/legal-resources/tennessee-code-revenue-rules.html
Executive Order No. 11 signed January 7, 2020 (state employee paid leave).
https://roar-assets-auto.rbl.ms/documents/14737/exec-orders-lee11.pdf
Tennessee Code Annotated Title 56, Chapter 7; Tennessee Paid Family Leave Insurance Act
Federal
ContactsUS Dept. of Labor, Wage & Hour Division
Regulations 29 CFR Part 825, “The Family and Medical Leave Act of 1993”