The regulations covering FMLA are extensive. For employers it’s critical that the staff tasked with administering FMLA understand their responsibilities. There are features of FMLA that are easier to negotiate, such as duration and what forms to use. On the other hand, there are elements of FMLA law that can often lead to misunderstandings and missteps, landing businesses in hot water due to noncompliance.  One area that is often misinterpreted are the rules applied to key employees.  Below are some of the misconceptions and important distinctions in managing leave for key employees.

FMLA Key Employee Rules: True Vs. False

True or False: Key employees are ineligible to use FMLA leave

False. All eligible employees are entitled to apply for and use FMLA leave.

True or False: Employers may not be obligated to provide job restoration to key employees

True. Key employees may not be granted job restoration if doing so causes substantial and grievous injury to the employers operations.

True or False: Once identified as a key employee, leave requests are automatically denied.  

False. The calculation to determine key employee status will be determined after the request is made being identified as a key employee does not exclude the key employee from using FMLA.

Requesting Leave and Key Employee Determination

• After an employee advises of the need for leave, a determination must be made whether or not the salaried employee is among the highest paid 10%.

• If the employer believes job reinstatement may be denied, when the leave is requested the employer must advise of this in writing.

• If at the time the leave is requested the employer determines job restoration will be available, no notice is required

During Leave and Job Restoration for Key Employees

• During the leave, if an employer determines that job reinstatement will be denied to a key employee on leave, and did not provide advance written notice, the employer loses any right to deny job restoration.

• During the leave, if an employer, having provided notice in advance of the key employees leave, intends to deny job restoration, the employer must also provide a second notice to the employee in writing by certified mail, outlining the specific reasons.

• A key employee may still request reinstatement. Upon receipt of the request for job restoration, the employer must revisit their decision and provide notice to the employee regarding the request job restoration, also delivered in person or by certified mail.

It’s critical that business owners make good faith efforts to determine if restoring an employee will cause substantial and grievous economic injury to the employer’s operations. Part of this effort requires recognizing that the key employees return to work, not the leave, determines substantial and grievous injury.