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Summary of differences between federal and state regulations
Some states have statutes that affect an employee’s right to leave for various reasons. In addition to the federal FMLA, Indiana employers need to be aware of the state’s provisions for military family leave.
Military Family Leave
Indiana’s Military Family Leave Act requires employers with 50 or more employees who have worked at least 20 weeks to grant an unpaid leave of up to 10 working days to a spouse, parent, grandparent, or sibling of a person who is ordered to active military duty.
Employee eligibility
An employee of a covered employer is eligible for military family leave if he or she meets the following criteria:
- Has been employed by an employer for at least 12 months;
- Has worked at least 1,500 hours during the 12-month period immediately preceding the day the leave begins; and
- Is the spouse, parent, grandparent, child, or sibling of a person who is ordered to active duty.
Leave entitlement/type of leave
Eligible employees may take up to 10 days of military family leave during one or more of the following periods:
- During the 30 days before active duty orders are in effect.
- During a period in which the person ordered to active duty is on leave while active duty orders are in effect.
- During the 30 days after the active duty orders are terminated.
Maintenance of health benefits
Employers must allow an employee, while on leave, to continue the employee’s health care benefits at the employee’s expense.
Job restoration
Employees must be restored to the position held before the leave, or placed into a position equivalent to the position held before leave, with equivalent seniority, pay, benefits, and other terms and conditions of employment.
An employer is not required to restore an employee to his or her position if the employer proves that the reason that the employee was not restored to the position is unrelated to the employee's exercise of his or her military family leave rights.
Notice
Employees must provide written notice, including a copy of the active duty orders if available, of the date the leave will begin. Employees must give at least 30 days’ notice before leave begins unless the active duty orders are issued less than 30 days before the leave is to begin.
Employers may require verification of an employee’s eligibility for the leave. If an employee fails to provide verification, an employer may consider the employee’s absence unexcused.
Court appearances/criminal proceedings
Employers may not knowingly or intentionally take a negative employment action because the employee has received or responded to a subpoena in a criminal proceeding. Such actions include the following:
- Dismissing an employee;
- Depriving an employee of employment benefits; or
- Threatening such a dismissal or deprivation;
The law does not provide for any employer coverage or employee eligibility criteria, nor does it indicate a limit of time off for the leave.
Disaster response
Employees may be called to respond to a disaster, public health emergency, public safety emergency, or other event that requires emergency action. They would serve on mobile support units. Those serving in such a capacity are immune from discipline or termination from employment for providing such service.
The law does not provide for employer coverage or employee eligibility criteria. The law does, however, indicate that the term of this duty must be limited to 60 days, but this could be extended for another 60 days if necessary for event response.
Volunteer emergency personnel
For private employers, employees who are volunteer firefighters or volunteer members may take unpaid leave to respond to calls.
Employees are, however, to notify the employer in writing that they are such volunteers.
Employers may reject such notice if the employees are essential to the employer. The employer may, therefore, deny associated leave, but it must notify the fire chief or other officer in charge of the volunteer fire department or the officer in charge of the volunteer emergency medical services association of the rejection.
Otherwise, employers may not discipline such employees because the employees:
- Were absent from work because they responded to a fire or emergency call that was received before the employees were to report to work;
- Left work to respond to a fire or emergency call, as long as the employees obtained permission from their supervisor; or
- Sustained injuries in the course or responding to an emergency (leave is limited to six months).
Employers may require employees to provide notice of the need for leave.
Employers may require employees who take such leave to present a written statement from the fire chief or other officer in charge of the volunteer fire department, or officer in charge of the emergency medical services association, at the time of the leave or injury indicating that the employees were engaged in emergency firefighting or emergency activity at the time of the absence or injury.
Employers may also require employees who are injured during a response to provide evidence from a physician or other medical authority showing the following:
- Treatment for the injury at the time of the absence; and
- A connection between the injury and the employee's emergency firefighting or other emergency response activities.
Such information must be kept confidential and in a separate medical file.
Employees may use vacation, personal time, or sick leave. Leave taken for an injury sustained in the line of duty would also be counted as leave under the federal FMLA, assuming the condition meets the definition of a serious health condition.
Civil air patrol
Private employers must provide employees time off to serve in the civil air patrol. Employees must notify the employer in writing that they are a member of the civil air patrol.
Employers may reject such notice if the employees are essential to the employer. The employer may, therefore, deny associated leave, but it must notify the commander or other officer in charge of the civil air patrol of the rejection.
Otherwise, employers may not discipline employees for the following:
- Being absent to respond to an emergency that began before work was to begin; or
- Leaving work to respond to an emergency after obtaining permission from their supervisor.
Employers may require employees who take civil air patrol leave to present a written statement from the commander or other officer in charge of the civil air patrol at the time of the absence indicating that the employee was engaged in an emergency service operation at the time of the absence.
State contacts
Indiana Department of Labor
www.in.gov/dol/
State statutes/regulations
Indiana Code
Title 22 Labor and Safety,
Article 2 Wages, Hours, and Benefits,
Chapter 13 Military Family Leave
Court appearances/criminal proceedings, §35-44.1-2-12
Disaster response, §10-14-3-19
Volunteer emergency personnel, §36-8-12-10.7, §36-8-12-10.9
Civil air patrol, §10-16-19
Federal
ContactsUS Dept. of Labor, Wage & Hour Division
Regulations
29 CFR Part 825, “The Family and Medical Leave Act of 1993”