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Top FMLA Lawyer Answer: Do I Fall Into The “Key Employee” Exception?

by | Jun 6, 2014 | Family Medical Leave Claims, Wrongful Termination |

Best FMLA Attorney Answer: Can my employer refuse reinstate me after I take FMLA leave? Can I be denied FMLA because I am a “key employee?” What should you do if you are wrongfully fired while out on FLMA leave? What is the best way to find an Ohio FMLA lawyer?

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Under the Family Medical Leave Act (“FMLA”), employers are required to provide eligible employees with a maximum of twelve weeks of leave if they are a private business engaged in, or affecting, interstate commerce, and have employed fifty or more employees for twenty or more weeks in the current or prior calendar year. Generally, you are eligible for FMLA leave if you have worked for the employer for at least a year, and you worked at least 1250 hours during the last year. Employers cannot refuse to reinstate an employee when he or she takes FMLA, nor can job retaliate against an employee who has taken FMLA leave when returning to work.

However, what about employees who needs to take medical leave but fill such a critical role to the company that the loss of that person for as long as twelve weeks makes things so difficult for the employer that it substantially harms their business? And, employers cannot realistically attract qualified applicants for such a critical position when only a temporary slot is available.

Enter the “key employee” exception.

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Under the key employee exception to the FMLA, employers can legally refuse to reinstate certain employees who fill certain positions which are critical to the employer. A position is critical if allowing the leave and/or the requirement for reinstatement would cause “substantial and grievous economic injury” to the employer; and the employee seeking leave is (1) salaried and (2) amongst the top 10 percent highest paid employees in the company. Thus, if you are a “key employee” under these FMLA exception conditions, your employer can refuse to reinstate you if you take FMLA leave.

This is a very difficult standard for your employer to satisfy. The FMLA regulations even expressly provide that this test is significantly harder to establish than the “undue hardship” test under the Americans with Disabilities Act (“ADA”). A look at 29 C.F.R. 825.218(c), provides that there is no bright line test:

A precise test cannot be set for the level of hardship or injury to the employer which must be sustained. If the reinstatement of a “key employee” threatens the economic viability of the firm, that would constitute “substantial and grievous economic injury.” A lesser injury which causes substantial, long-term economic injury would also be sufficient. Minor inconveniences and costs that the employer would experience in the normal course of doing business would certainly not constitute “substantial and grievous economic injury.”

To me, a “substantial and grievous economic injury” has to be one of those things where there is mass panic with everyone would be running around screaming with their hands waiving in the air, just because the “key employee” was not there to keep everything afloat. I mean, the first questions I would first ask an employer are: Do you give this “key employee” vacation time? And, high level people usually get a good amount of vacation time, right? Oh, seven weeks. That’s nice. Does the company survive when this “key employee” has taken vacation?

And, even if you do fit this exception, there are still certain requirements your employer must comply with if they wish to take advantage of this exception.

If your employer wants to utilize the key employee exception to avoid being required to reinstate you, they must give you a chance to decide whether you are prepared to forfeit your job. Generally, this means the employer must inform you of your key employee status and its intent not to reinstate you either before you take leave, or shortly after you begin leave, provided they allow you a reasonable amount of time to return to work. The failure of an employer to comply with these requirements will result in a violation of the FMLA, even if the employee would have qualified for the key employee exception but for the failure of the employer to provide notification.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA), you should call the right attorney, The Employee’s Attorney, as quickly as possible to schedule a free and confidential consultation. The phone number for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.

If you feel that you are being denied leave rights under the Family Medical Leave Act (FMLA) or are being retaliated against for taking medical leave, you should call the right attorney as quickly as possible to schedule a free and confidential consultation. The phone number to contact an Ohio attorney for FMLA help is 866-797-6040. While you focus on your family medical needs, let our FLMA attorneys focus on your medical leave rights.

Disclaimer:

The materials available at the top of this medical leave page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get medical leave under the FMLA?”, “what should I do when my job won’t give me medical leave?”, “can my boss deny me medical leave?”, “what should I do if I was fired in retaliation for taking FMLA leave?”, or “is my employer allowed to…?”, your best option is to contact an Ohio medical leave attorney to obtain advice with respect to FMLA questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.