|Legal Opinion: |
Text of Document: City question: If an employee who has not completed the city’s probationary period is deployed, is he entitled to the 20 days of leave?
In the MTAS publication “Tennessee Reservist Leave of Absence,” it appears that an employee could not be denied because of their length of employment; however, by definition they are not a covered employee because they haven’t completed the probationary period.
Q: Does an employee have to complete the probationary period at the city before they are entitled to the 20 days of leave as defined by TCA 8-33-101 & 8-33-109?
TCA 8-33-101 Chapter definitions
(3) “Public employee” means any person holding a position in public employment “who has successfully completed the probationary period required by the agency” in which such person is employed;
A: Although there appears to be a minor conflict with the language, it is the opinion of MTAS Legal Consultant Josh Jones that all employees are entitled to this leave regardless of completion of probationary period. See below response from legal consultant.
Any officer or employee is entitled to military leave pursuant to TCA § 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.”
TCA 8-33-109. Reservists' leave of absence
All officers and employees of this state, or any department or agency thereof, or of any county, municipality, school district, or other political subdivision, and all other public employees of this state who are, or may become, members of any reserve component of the armed forces of the United States, including members of the Tennessee army and air national guard, shall be entitled to leave of absence from their respective duties, without loss of time, pay, regular leave or vacation, impairment of efficiency rating, or any other rights or benefits to which otherwise entitled, for all periods of military service during which they are engaged in the performance of duty or training in the service of this state, or of the United States, under competent orders; provided, that an officer or employee while on such leave shall be paid salary or compensation for a period, or periods, not exceeding twenty (20) working days in any one (1) calendar year, plus such additional days as may result from any call to active state duty pursuant to § 58-1-106. The military leave herein provided shall be unaffected by date of employment or length of service and shall have no effect on other leaves provided by law, regulation, policy or practice. After the twenty (20) working days of full compensation, any public employer may provide partial compensation to its employees while under competent orders.
[Acts 1951, ch. 88, § 1 (Williams, § 1866.7); 1967, ch. 376, § 2; 1969, ch. 204, § 1; T.C.A. (orig. ed.), § 8-3310; Acts 2003, ch. 308, § 1; 2007, ch. 360, § 1.]