Other Leaves: Indiana
Federal law and guidance on this subject should be reviewed together with this section.
Authors: Stuart R. Buttrick, Rozlyn Fulgoni-Britton and Susan W. Kline, Faegre Baker Daniels LLP
- There are various types of leave that may be available to an employee in Indiana.See Leaves of Absence.
- Indiana does not have a state family and medical leave law applicable to private employers. See Family and Medical Leave.
- Indiana employers with 50 or more employees must provide a leave of absence to eligible employees who have a spouse, parent, grandparent, child or sibling that is called to active duty. See Family Military Leave.
- Under Indiana law, the rights, benefits and protections of the federal Uniformed Services Employment and Reemployment Rights Act apply to members of the Indiana National Guard or the National Guard of another state who are ordered to active duty. See Military Leave.
- An eligible employee may take leave to fulfill their emergency services obligations. See Emergency Responder Leave.
- An eligible employee is entitled to leave while serving as a member of a mobile support unit during a disaster or other event that requires emergency action. See Mobile Support Unit Leave.
- All employees in Indiana may take time off from work to respond to a jury duty summons. See Jury Duty Leave.
- An employee may not be terminated for receiving or responding to a subpoena in a criminal proceeding. See Witness Duty Leave.
Leaves of Absence
There are various types of leave that may be available to an employee in Indiana. To the extent that applicable federal, state or local laws conflict, an employer should apply the provisions that provide the greatest benefits and protections to the employee.
An employer should remain alert to the various types of leave available and take care to track employees' leaves of absence, including:
- The date the leave begins;
- The type of leave; and
- The expected return date.
An employee who exercises leave rights is not protected from discipline for legitimate reasons that are unrelated to the leave and that are not otherwise prohibited by law.
If an employer must discipline an employee who has exercised his or her leave rights, it should carefully document the reasons for the discipline, review past application of the rule (to ensure the policy is being enforced evenhandedly), and consider whether to seek the advice of counsel before imposing the discipline.
Family and Medical Leave
Indiana does not have a state family and medical leave law applicable to private employers. However, an Indiana employer with 50 or more employees is likely required to adhere to the federal Family and Medical Leave Act (FMLA). In addition, certain employers may be required to provide family military leave to eligible employees. See Military Family Leave.
Family Military Leave
While Indiana does not require employers to provide a state family and medical leave, Indiana employers with 50 or more employees must provide a leave of absence to eligible employees who have a spouse, parent, grandparent, child or sibling that is called to active duty (i.e., military duty in the US Armed Forces or Indiana National Guard for a period that exceeds 89 consecutive calendar days). For more information on family military leave, please see FMLA: Indiana.
Under Indiana law, the rights, benefits and protections of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) apply to members of the Indiana National Guard or the National Guard of another state who are ordered to active duty. In addition to USERRA, Indiana has its own military leave law, but employers must apply any protections granted by USERRA if those protections are more expansive or favorable to employees. For more information on military leave, please see USERRA: Indiana.
Civil Air Patrol Leave
An employer may not discipline a Civil Air Patrol member for an absence due to engaging in emergency service operations before the employee's scheduled start time or for leaving work early to engage in emergency service operations if the employee's supervisor authorizes the absence before the employee leaves work. For more information on civil air patrol leave, please see USERRA: Indiana.
Emergency Responder Leave
An employer may not discipline an eligible employee who is a volunteer firefighter or volunteer emergency medical services personnel for:
- Being absent from work in order to respond to a fire or emergency call received by the employee before the time that the employee was scheduled to report for work;
- Leaving work early to respond to a fire or emergency call if the employee's supervisor has authorized the employee to leave work in such situations; or
- For an injury or absence from work because of an injury that occurs while the employee is engaged in emergency firefighting or other emergency response activity so long as the employee's absence from work does not exceed six months from the date of the injury.
Emergency medical services personnel are individuals certified by the emergency medical services commission who:
- Are elected or appointed to membership in a volunteer fire department; and
- Pledge to faithfully perform, with or without nominal compensation (i.e., annual compensation of not more than $20,000), the work related duties assigned and orders given to the individuals by the chief or an officer of the volunteer fire department, including orders or duties involving education and training.
A volunteer firefighter is a firefighter who:
- Is elected or appointed to membership in a volunteer fire department;
- Pledges to faithfully perform, with or without nominal compensation (i.e., annual compensation of not more than $20,000), the work related duties assigned and orders given to the firefighter by the chief, or an officer, of the volunteer fire department, including orders or duties involving education and training as prescribed by the volunteer fire department or the state; and
- Whose name has been entered on a roster of volunteer firefighters that is kept by the volunteer fire department and that has been approved by the proper officers of the unit.
To be eligible for leave an employee must provide their employer with advance written notice that they are volunteer firefighters or volunteer emergency medical services personnel and not have that notice rejected by their employer. An employer may reject an employee's notice if the employee is essential to the employers day-to-day business operations and the employee's absence is likely to cause a financial loss. If the employer rejects an employee's notice, the employee must promptly notify the fire chief or other officer in charge of the volunteer fire department or volunteer emergency medical services association. An employee whose notification has been rejected and who misses work due to an emergency situation, may be disciplined for the absence(s).
After an employee misses work, an employer may require a written statement from the employee's fire chief or other officer in charge of the volunteer fire department, or officer in charge of the emergency medical services association confirming that the employee was engaged in emergency firefighting or emergency response activity at the time of the absences or injury. An employer may also require an employee to provide medical evidence from a physician or other medical authority documenting treatment for injuries at the time of the absence and the connection between the injury and the employee's emergency firefighting or other emergency response activities, if applicable.
To the extent required by law any medical evidence or documentation obtained by an employer must be:
- Kept in a separate medical file created for the employee; and
- Treated as a confidential medical record.
An employer should consider including an emergency responder leave policy in its handbook to educate employees, and supervisors, about the availability of emergency responder leave and to demonstrate compliance with Indiana law.
Mobile Support Unit Leave
An employer may not discipline or terminate an employee for serving in a mobile support unit. The governor of Indiana or the executive director of the Department of Homeland Security at the request of the governor, may establish mobile support units necessary to respond to a disaster, public health emergency, public safety emergency or other event that requires emergency action.
Mobile support units may be called to duty for training, an exercise or a response and must perform the unit's functions in any part of Indiana or in other states.
The term of duty in a mobile service unit is 60 days or fewer. However, the executive director may renew duty orders for successive periods of not more than 60 days, if needed for the mobile support unit to participate in or respond to the event.
Individuals selected to serve in a mobile support unit may be unemployed, retired, self-employed or employed in any capacity, including:
- Emergency management;
- Fire services;
- Emergency medical services;
- Law enforcement;
- Public health;
- Public works; or
- Mental health.
Individuals may be employed by any employer, including:
- The federal government;
- The state;
- A political subdivision; or
- A business or organization.
An employee must be paid for the time spent serving in a unit. It is unclear whether an employer must bear the cost. However, it is clear that employers who pay mobile support unit members during their leave can seek reimbursement from the state for:
- The compensation paid and the actual and necessary travel, subsistence and maintenance expenses of the employee while on duty as a member of a mobile support unit; and
- All losses of or damages to the employer's or employee's supplies and equipment incurred in the course of duty as a mobile support unit member.
An employer should consider including a mobile support unit leave policy in its handbook to educate employees, and supervisors, about the availability of mobile support unit leave and to demonstrate compliance with Indiana law.
Jury Duty Leave
An employer must allow an employee to take leave to serve as a juror. For more information on jury duty leave, please see Jury Duty: Indiana.
Witness Duty Leave
An employer cannot terminate employees' employment or deprive them of employment benefits, or threaten to do so, because the employee receives or responds to a subpoena in a criminal proceeding.
If an employer violates this protection, it is a Class B misdemeanor, which is punishable by a fine up to $1,000 and up to 180 days' imprisonment. +Ind. Code § 35-44.1-2-12.
Currently, Indiana law does not require witness duty leave for civil proceedings. However, many Indiana employers provide an unpaid leave to employees who need to comply with a civil subpoena.
An employer should consider including a witness leave policy in its handbook to educate employees, and supervisors, about the availability of witness leave and to demonstrate compliance with Indiana law.
An employer should be aware that certain leaves are protected by state law and therefore it should train its supervisory employees not to take action against an employee because he or she took leave or indicated that he or she may take the leave in the near future. See Training and Development: Federal.
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