Your 'Key Employees' Don't Have Full FMLA Protection

Your 'Key Employees' Don't Have Full FMLA Protection Malchev - Fotolia

Under the Family and Medical Leave Act, an eligible employee is entitled to take unpaid, job-protected leave for up to 12 workweeks in a 12-month period and is allowed to return to his or her position or a similar one with the same benefits.

But as attorney Greg Mansell explains in an entry on Mansell Law’s website, there is an exception for “key employees.” Says Mansell, “A ‘key employee’ is a salaried FMLA-eligible employee who is among the highest paid 10 percent of all employees employed by the employer within 75 miles of the employee’s worksite.”

Employers don’t have to restore the position of key employees, says Mansell, assuming three conditions are met, one being that not doing so is “necessary to prevent substantial and grievous economic injury” to the company’s operations.

He says employers have a limited time frame to invoke the exception and must follow a set of procedures should they decide to do so, including giving the employee written notice when he or she submits FMLA paperwork.

Key employees are not limited to chief executive officers or chief financial officers, as one might think. Mansell points out that courts have allowed companies to classify a variety of positions as “key employee” jobs, even a hotel’s executive housekeeper in Oby v. Baton Rouge Marriott.

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