Are You a “Key Employee” Under the Family Medical Leave Act?

Are You a “Key Employee” Under the Family Medical Leave Act?

November, 2020

The Family Medical Leave Act (FMLA) allows eligible employees to take up to 12 weeks of unpaid leave within a 12-month period. The leave allows employees time to receive treatment for a serious medical condition, or to care for a close family member suffering from a serious medical condition. The FMLA provides eligible employees with certain protections, such as the right to return to their same position when they come back from leave. However, the law also exempts “key employees’ from this right to return to their same position. So, what is a key employee?

Who is Considered a Key Employee?

According to 29 C.F.R. Section 825.217(a), a key employee is defined as an employee who receives a salary and is among the highest-paid 10% of all employees that work for an employer within a 75-mile radius of the employer’s worksite. Employers are not required to return a key employee to their same position after FMLA leave if three conditions are met. The conditions are as follows:

  • The restoration upon return would result in substantial and grievous economic injury to the employer,
  • The employer notified the employee of their intention to deny restoration upon realizing these losses would occur, and
  • After receiving notice, the employee decides not to return to work

The purpose of exempting key employees from the right to restoration stems from the belief that certain employees are integral to the operation of the business. In order for an employee to be considered a key employee, it must be that holding the employee’s position open so the employee can return to the same position after FMLA leave, would cause significant economic injury to the employer and not the fact that the employee took leave.

Limitations to the Key Employee Provision

Although the key employee exemption may sound like employers have broad discretion, and therefore,it will be easier for employers to violate FMLA, that is not necessarily true. Employers must follow specific rules and procedures when they choose not to restore a key employee to the same position after FMLA leave. To establish someone as a key employee, employers must:

  • Invoke the exception within a certain amount of time
  • Notify the employee in writing that they are a key employee at the time of the requested leave
  • Provide notice to the employee as soon as practicable  of their key employee status, if it is impossible to provide notice at the time of the requested leave
  • Inform the employee of the potential consequences of the key employee classification in regard to the leave
  • Provide the employee with a reasonable amount of time to return

Key employees are typically classified as such based on the criteria discussed above, and when returning the employee to the same position after leave would result in economic harm for the employer. 

Were You Misclassified as a “key employee”? Our Columbus Employment Lawyers can Help

The key employee exemption provides employers with some leeway in returning employees to their positions after FMLA leave. Unfortunately, some employers may try to take advantage of this exception to retaliate against employees who rightfully take FMLA leave. If you believe you were misclassified or your employer violated this provision of the FMLA, our Ohio employment lawyers at Marshall & Forman, LLC, can assist with your case. Call us today or contact us online to schedule a consultation with one of our skilled attorneys.