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VOICES FROM THE INDUSTRY: New law allows military relatives to take unpaid leaves

August 20, 2007

Family members of military personnel called to active duty could now spend a little more time with loved ones without worrying about job security, thanks to Indiana's Military Family Leave Law, which took effect July 1.

That's good news for the work force. But it could be problematic for some companies. That's why it's important for both employees and employers to be aware of the facts.

10 days per year

The law, which ensures that qualifying employees aren't penalized for taking a leave of absence of up to 10 days per year in connection with a close relative's military deployment, leave or discharge, is part of a growing national trend to create legal job protection for employees who take time off work for personal needs.

Patterned after the Family and Medical Leave Act and the federal Uniform Services Employment and Reemployment Rights Act, Indiana's law protects employees who wish to take time off to spend with family members in the military but who fear losing their jobs if they miss too much work. The law applies to employees with family members who are about to begin, are home on leave from or are returning from extended military service.

The law doesn't force companies to offer everyone the leave of absence. As with any law, there are requirements and restrictions that apply, which both employees and employers need to know.

In short, the law applies when an employee's spouse, brother or sister, child or grandchild serves full-time military active duty for 90 or more consecutive calendar days.

The law requires companies with at least 50 employees to allow up to 10 days of unpaid leave to qualified employees: 1, during the 30 days before the family member reports to duty; 2, when the family member is home on leave; or 3, during the 30 days after the family member is released.

Companies with 50 or fewer employees may decide to offer such leave as a goodwill gesture, but aren't required to by law.

The leave of absence should be offered to employees without punishment. In other words, employers must either hold the employee's position or return the employee to a position equivalent to the one held before the employee took time off work. Also, supervisors or managers should not discipline, deny promotions or otherwise penalize employees because they have taken a legally protected leave.

Employers may enforce certain requirements, such as requiring employees to use available vacation time to cover the leave. In that case, the employee would be paid for the time off work that also counts as vacation time or paid time off. Otherwise, the leave is unpaid unless the employer voluntarily decides to continue pay during the leave.

Eligibility requirements

To be eligible for Indiana's family military leave, an employee must:

Be a biological grandparent, biological or adoptive parent, court-appointed guardian, adoptive or biological sibling, or spouse of a person ordered to active military duty for at least 90 consecutive days.

Have been employed by the company or organization for at least one year at the time of the leave.

Have worked at least 1,500 hours during the one-year period before the leave occurs.

Provide written notice with a copy of the active duty orders, if available, or other documentation of the family member's service.

Give at least 30 days' notice before the leave begins, unless duty orders are issued less than 30 days before the date the requested leave would begin.

Since the law only recently took effect, many companies and employees are likely still unaware of its provisions. To build awareness and avoid future misunderstandings, employers should consider revising their employee handbooks to explain the employee's protections and obligations related to family military leave. Clearly defining rights and responsibilities helps protect both employees and their employers from potential litigation.

It also is especially important that employers train all supervisors about the requirements of the new law so that if an employee requests the leave, all company managers will be able to give a legally appropriate response.



Kline is an employment law attorney with Baker & Daniels LLP. Views expressed here are the writer's.
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