Am I really a "key" employee under the FMLA?


I work as an accountant for a big firm, and I am expecting my first child in four months. I told my manager that I would be taking 12 weeks off under the FMLA when I give birth. Although he is happy for me, he isn't happy with the timing, which I admit is not great: I'll be out for most of tax season. I sat down with our regional HR representative to start the paperwork for my time off. She told me I wouldn't be able to take more than two or three weeks after giving birth. Because I have one of the firm's most important clients, I am considered a "key" employee, who can't take FMLA leave. Can they deny me the right to take time off when I have a baby? What is a key employee, anyway?


It sounds like something got lost in translation, hopefully on your HR representative's end. Although there are special rules for "key employees," as that term is defined by the federal Family and Medical Leave Act (FMLA), key employees still have the right to take time off under the FMLA, with continued health benefits. Also, who counts as a key employee depends entirely on salary, not on how important you are to the company.

As you know, the FMLA gives eligible employees the right to take up to 12 weeks off, unpaid, to bond with a new child (among other reasons). During FMLA leave, your employer must continue your health insurance coverage. Although you may be required to pay your usual share of the premium (if any), your employer must continue to cover the costs it covers when you are working. When your leave is finished, you have the right to be reinstated to your former position, with a few exceptions.

One of those exceptions applies to key employees: salaried employees who are among the highest-paid 10% of the employer's workforce within 75 miles of where you work. An employer may legally decline to reinstate a key employee if returning that employee to work would cause the company "substantial and grievous" economic injury.

There are several things to note about these rules:

  • You may not be a key employee at all. Your HR representative appears to have classified you as a key employee because of your importance to the firm, but the law doesn't care about that. You are a key employee only if you qualify based on salary. To find out, you may have to go back to the HR office and ask.
  • Even if you are a key employee, you still have the right to take leave under the FMLA, with continued health insurance coverage. You may not have the right to get your job back when you leave is over, however. This goes beyond splitting hairs, as that health insurance coverage may be very important to you.
  • Even if you are a key employee, you may be denied reinstatement only if reinstating you would cause pretty serious harm to your company. Notice that the law requires an employer to show that your reinstatement would cause harm, not that allowing you to take leave in the first place would cause harm. For example, your employer might meet this standard if the only way it could cover your account during your leave was to offer a replacement a one-year employment contract at a high salary. On the other hand, if your employer spread your work around to existing employees or hired temporary help to get the work done, it would have a tough time meeting the standard.
  • If you ask to be reinstated, your employer must reevaluate whether reinstating you would cause the significant economic harm required by the statute. In other words, you can require your employer to review its decision to make sure your reinstatement would harm the company. If, for example, the replacement the company hired doesn't work out, you might be entitled to restoration to your former position after all.

As you can see, there are plenty of angles to consider. Your first step should be to return to the HR office, clarify the rules for classifying you as a "key" employee, and make sure you really are subject to this exception. If you are a key employee and your employer still wants to curtail your time off or refuse to reinstate you, talk to an experienced lawyer right away. The best time to clear up misunderstandings and secure your rights is while you are still at work, before you have your baby and before your employer takes definitive steps to replace you.

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