Last time I talked about how to determine if an employee is a “key employee” under the Family and Medical Leave Act. This time, we’re going to talk about the actual steps you need to take in order to invoke this exemption.golden-key

There are very specific, mandatory notice requirements that apply. 29 C.F.R. Section 825.219(a) requires an employer to notify the employee of the employee’s status as a “key employee,” that it may deny reinstatement following FMLA leave if it determines that substantial and grievous economic injury will occur, and the potential consequences with respect to the maintenance of health benefits. This requirement may be met by checking off the appropriate provision on the DOL’s model “Notice of Eligibility and Rights & Responsibilities,” WH-381. (Are you using the DOL’s model forms? If not, why not? They’re actually pretty good – and I have never seen an individualized employer-prepared form that was any better! In fact, most employer-prepared forms that I’ve seen have various problems. Big ones.)

The employer should give this first notice as soon as it is able to determine that the employee is a key employee. Hopefully, this should happen when the employee gives notice of the need for leave, but may occur after the leave begins if the employer needs time to make that determination. Please note that if the employer fails to give timely notice, the employer will not be able to deny restoration – even if there is substantial and grievous economic injury!!!

In addition, 29 C.F.R. Section 825.219(b) requires an employer, once it has made a good faith determination that substantial and grievous economic injury will result if the employee is reinstated, to notify the employee of the following:

  • the determination that substantial and grievous economic harm will result if the employee is reinstated;
  • that it cannot deny FMLA leave;
  • that it intends to deny restoration to employment on completion of the FMLA leave; and
  • the basis for the finding that substantial and grievous economic injury will result. (This means the facts – something like, “We were required to fill your position because of ….[fill in] and we cannot afford to pay both you and your replacement to perform the same role.”)

In addition, at least one case found that the employer must also specifically inform the employee that he has the right to request restoration at the end of leave. So this may as well be included.

If leave has commenced, the employer must also provide the employee, in this second written notice, a reasonable time in which to return to work, taking into account circumstances such as the length of the leave and the urgency of the need for the employee to return to work.

This second notice must be provided either in person or by certified mail. The failure to provide the second notice constitutes a violation of FMLA, and an employer cannot rely upon the “key employee” exemption if this notice is not given. Meaning that the employee must be reinstated. Regardless of any injury.

There is one more potential notice, required by 29 C.F.R. Section 825.219(d). As I mentioned in the last blog posting, the “substantial and grievous economic injury” analysis has to be performed when the key employee requests FMLA leave, but also if and when the key employee requests restoration at the end of the leave. If restoration is sought, and the employer determines that the substantial and grievous injury will occur, then the employer must notify the employee, in writing, of the denial of restoration. And this written denial must be provided in person or by certified mail.