When a key employee takes, it can burden an employer. That’s one reason the includes a key employee reinstatement exemption that provides less job protection for employees who are among the highest paid 10% of the employees working within 75 miles of their workplace.
Employers sometimes think they can replace key employees who take FMLA leave. Not true. They must show that reinstating the employee would have caused substantial and grievous economic injury to the company.
Recent case: Angie Johnson was one of the highest paid where she worked. She went on FMLA leave and was warned that, as a key employee, she might lose her job.
When she was not reinstated, Johnson sued. But the court said the key employee provision didn’t apply because the employer never claimed any economic harm. (Johnson v. Resources for Human Development, No. 09-3664, ED PA, 2011)
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- You can discuss worker's performance during FMLA leave
- Keep all medical records confidential! Otherwise, normal lawsuit rules don't apply
- Don't take malingering employee's bait: Calling in sick shouldn't trigger FMLA query
- Keep memos, other documents leading up to discipline
- Beware last-ditch efforts to claim FMLA leave