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FMLA - Key Employees

When Can An Employer Refuse To Reinstate A Key Employee?

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If you are a key employee, before your employer can refuse to reinstate you, your employer must:

  • Notify you of your status as a "key" employee in response to your notice of intent or your request to take FMLA leave.
  • Notify you as soon as your employer decides it will deny job restoration, and explain the reasons for this decision.
  • If leave has started, your employer must offer you a reasonable opportunity to return to work from FMLA leave, taking into account the circumstances such as the length of the leave and the urgency of the need for your to return; and
  • You are still entitled to request reinstatement at the end of the leave period. Your employer must then again determine whether there will be substantial and grievous economic injury from reinstatement based on the facts at that time.   If it is determined that substantial and grievous economic injury will result, your employer must so notify you.  If the employer is correct, you do not have to be reinstated.

Note: Even if you receive notice that your employer does not intend to reinstate you, your health benefits continue for the entire FMLA leave period.


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