By Steven F. Pockrass and Kristine M. Young (summer associate in Ogletree Deakins’ Indianapolis office)

The ongoing war in Iraq has spurred several states to approve legislation creating workplace leave entitlements for individuals with family members in the military. Following that trend, mid-sized and larger employers in Indiana now are required to provide job-protected leave to eligible employees with family members on active duty in the U.S. armed forces and the Indiana National Guard.

Indiana’s Military Family Leave Act, authored by Rep. Dennis Avery (D – Evansville), became effective July 1. The law is largely patterned after the federal Family and Medical Leave Act (“FMLA”), which requires covered employers to provide job protected leave to eligible employees for certain family and medical reasons. It also fills a perceived gap left open by the federal Uniform Services Employment and Reemployment Rights Act (“USERRA”), which provides employment protections to employees who are called to active military duty.

Whereas the FMLA provides for a total of up to 12 workweeks per year of job-protected leave related to the serious health condition of an employee or an employee’s family member, or for the birth or placement of a child for adoption or foster care, the Military Family Leave Act is designed to allow employees to take a total of up to 10 days off work per year to spend time with a family member who has been called to active duty.

This new law applies to the state and its political subdivisions, and to all other employers with 50 or more employees for each working day during each of at least 20 calendar workweeks. The law makes job-protected leave available to parents, grandparents, siblings, and spouses of individuals on active duty in the United States armed forces, the Indiana National Guard or the Indiana Air National Guard. “Active duty” is defined as full-time service on active duty orders for a period that exceeds 89 consecutive calendar days.

To be eligible for such leave, an employee: (1) must have been employed by the employer for at least 12 months; and (2) must have worked at least 1,500 hours during the 12-month period immediately preceding the date that the leave is to begin.

Family military leave can be taken all at once or sporadically throughout the year during one or more of the following time periods:

  • the 30 days before the active duty orders are in effect;
  • during a leave provided to the person on active duty while the active duty orders are in effect; and
  • the 30 days immediately following the termination of the active duty orders.

Employees who take family military leave are entitled to restoration to the same or an equivalent job at the end of their leave, unless the employer can prove that the reason for not restoring the employee is unrelated to the employee’s exercising his or her rights under the Act. Employees also are entitled to continuation of their group health benefits while on leave.

Similar to the FMLA, the Indiana Family Military Leave Act allows an employer to require employees to substitute earned paid vacation, personal leave, or other paid leave for any part of the 10 days of otherwise unpaid leave available under the Act. If the employer does not require the employee to use such paid leave, the employee still may elect to do so. If the employer requires or the employee elects to use earned paid leave, those days count toward the 10-day total. In other words, the employee is not entitled to an additional 10 unpaid days of leave. Rather, the employee is entitled to up to 10 days of job protected leave, whether those days are paid, unpaid or some combination thereof.

Employees are required to give their employers written notice, including a copy of active duty orders, if available, before taking family military leave. Employees must provide at least 30 days notice to their employer before the date that the requested leave is to begin unless the active duty orders are issued less than 30 days prior to the date that the requested leave is to start. Employers also may require verification of an employee’s eligibility for leave. If an employee does not provide the required verification, the employer may treat the absence as unexcused.

Employers are prohibited from interfering with, restraining or denying an employee’s exercise or attempted exercise of rights under this law. Employees may seek a court ordered injunction directing the employer to honor the request for leave, as well other forms of equitable relief for a violation of the law.

The Indiana Family Military Leave Act does not expressly require that the family member on active duty be an Indiana resident in order for the employee to take leave. However, the new law is likely to have a significant impact on Indiana employers because of the large number of Indiana residents who are on active duty.

During calendar year 2005, for example, approximately 24,750 Indiana residents were on active duty in the U.S. armed forces and approximately 12,500 Indiana National Guard members were on active duty. Indiana has one of the largest National Guard contingents in the country.

Although the new law does not require employers to post notices or issue written policies regarding family military leave, covered employers should consider updating their employee handbooks and other manuals to include such policies. Covered employers also will want to ensure that they have a method in place for tracking the amount of family military leave taken by their employees.

Please note: This article was reprinted with permission from Inside Indiana Business.

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