Austin TX Business Law Blog

Tuesday, November 13, 2018

FMLA and Key Employees

Can our company terminate a key employee who takes FMLA leave?

The Family and Medical Leave Act (FMLA) allows qualifying employees up to 12 weeks of unpaid leave per year.  Generally, employees who take FMLA leave are entitled to have their job back at the end of their leave period.  While FMLA is important to the protection of employees with medical conditions new babies, and other urgent family matters, losing an employee for 12 weeks can be hard for the employer.  At times, a company cannot afford to lose a key employee for 12 weeks. Understanding that circumstances do arise in which a company cannot keep a position open for a key employee, certain exceptions will allow an employer to terminate a key employee who takes FMLA leave.  

The Key Employee Exception

Per the FMLA, employees who work in a company with 50 or more employees will be entitled to 12 weeks of unpaid leave if they are unable to work due to a serious health condition, have had or adopted a child, or need to care for an immediate family member with a serious health condition.  To receive FMLA leave, an employee must have worked for the company for at least 12 months. Generally, employees who take FMLA leave must receive their position back upon their return. Any employer who feels they must deny an employee FMLA leave should do so only after consulting with an experienced business law attorney.

Under certain circumstances, an employer can deny job restoration to a key employee who takes FMLA leave.  A key employee is an employee who is on salary and paid the highest 10 percent of all employees within a 75-mile radius of the employee’s worksite.  In addition to meeting this criteria, the employer must prove that restoring the employee to his or her position would cause substantial and grievous economic injury to the employer’s operations.

Refusing to restore an employee to his or her position will require a strong evidentiary showing.  While there is no precise test, it is essential that the employer recognize that minor inconveniences will not meet the standard.  Substantial and grievous economic injury is a stringent standard. Further, the employer must provide the employee with written notice at the time that he or she gives notice of an intent to take leave that he or she is a key employee.  The notice must inform the employee of the potential risk to their job in taking leave. Employers who feel they will be harmed by restoring an employee who intends to take leave should consult with a business law attorney as soon as possible.

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