Employees who take leave under theAct ( ) are usually guaranteed reinstatement to their jobs. But one key exception exists: You can designate a class of highly paid, salaried "key" employees to whom you can deny reinstatement. You can't deny the actual to key employees, only reinstatement. (To qualify as a key employee, a person's salary, including bonuses, must be among the highest 10 percent your organization pays.)
Important point: The law says you can deny "key employees" their old job back only if the reinstatement would cause your business "substantial and grievous economic injury." What does that mean? The law gives no precise guidelines, but minor inconveniences won't cut it. If you can prove that leaving a key employee's job open threatens the long-term viability of your operation, you'll be more likely to win in court.
To take advantage of this provision, take action on the front end. Give employees written notice that they qualify as key employees either at the time they notify you or when the leave begins. Then, fully inform the key employee that he or she could lose his or her right to reinstatement.
Recent case: A Marriott executive housekeeper took FMLA leave to care for her elderly parents. Soon after, Marriott sent her a letter asking for an estimate of her return. The letter explained that she was a "key employee" necessary to the daily operation of the facility. (She was the hotel's third-highest paid employee.) When she couldn't provide a time estimate, the hotel hired a replacement. She tried to return to work, but was denied reinstatement.
She sued, alleging an FMLA violation, but lost. Marriott proved that she was, indeed, a "key" employee and that her absence caused economy injury. (Oby v. Baton Rouge Marriott, No. 03-495-B-M1, M.D.La., 2004)