THE FMLA AND

KEY EMPLOYEES

“Certain employees can actually lose their job if they choose to exercise their right to use FMLA. Known as “key employees,” an

employer can effectively prevent an employee who otherwise qualifies from receiving the job protection benefits of the FMLA.”

Charles Curley Pennsylvania Real Estate Attorney

Charles Curley Pennsylvania Employment Law Attorney

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During the 1960s and 1970s in the United States women fought to be treated

equally to men in the workplace. It was a long and difficult battle; however,

women did eventually win both the legal right to equality in the workplace and

societal acceptance of women in the workplace. The laws in the U.S. have come

a long way since then. Today, in

the 21st century, working

parents (both men and women)

are protected by laws such as

the Family and Medical Leave

Act, or FMLA. The FMLA

potentially allows a worker to

take job-protected leave for

family or medical reasons.

Though the law does not require

the employer to compensate the

employer while he/she is out on

FMLA leave, an employee does

not have to worry about having a

job when returning from FMLA

leave…or does he/she? Certain

employees can actually lose

their job if they choose to

exercise their right to use FMLA. Known as “key employees,” an employer can

effectively prevent an employee who otherwise qualifies from receiving the job

protection benefits of the FMLA.

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FMLA Purpose

The original purpose of the FMLA was to

provide workers with a “safety net” for instances

when they had a family or medical issue that

required them to miss a considerable amount of

time from work. Prior to the FMLA, employees

were forced to use their sick and/or vacation

time – if they had any – when the need to take

time off arose. Many workers, however, did not

even have that option and for those who did

their sick/vacation days often feel short of

covering the amount of time they needed to be

absent from work. Therefore, workers typically

risked losing their jobs if they took time off to

care for a family member or even to recover from the birth of a child.

FMLA Basics

The FMLA entitles eligible employees who work for a covered employer to take

unpaid, job-protected leave for specified family and medical reasons. Employees

also benefit from continuation of group health insurance coverage under the

same terms and conditions as if the employee had not taken leave. Most

employees are entitled to take up to 12 weeks of FMLA leave within a 12 month

period. Some employees, however, may take up to 26 weeks to care for a

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covered servicemember with a serious injury or illness if the eligible employee is

the servicemember’s spouse, son, daughter, parent, or next of kin.

When Can the FMLA Be Used?

For workers who qualify under the basic FMLA leave, time off work may be taken

for:

the birth of a child and to care for the newborn child within one year of birth;

the placement with the employee of a child for adoption or foster care and

to care for the newly placed child within one year of placement;

to care for the employee’s spouse, child, or parent who has a serious

health condition;

a serious health condition that makes the employee unable to perform the

essential functions of his or her job;

any qualifying exigency arising out of the fact that the employee’s spouse,

son, daughter, or parent is a covered military member on “covered active

duty;”

How Does the FMLA Define a “Key Employee?”

According to the FMLA, a “key employee” is a “salaried, FMLA-eligible employee

who is among the highest paid 10 percent of all the employees employed by the

employer within 75 miles of the employee's worksite.”

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How Are the Rules Different for a “Key Employee?”

If you qualify as a key employee, your employer may deny you the job restoration

benefits afforded to all other workers under the FMLA. In other words, you have

no guarantee that your job will be waiting for you if you take time off for a family

or medical reason.

The Key Employee “Test”

For an employer to deny an employee restoration of his/her job on the basis that

the employee is a “key employee,” the employer must be able to prove that the

restoration of the employee to employment will cause "substantial and grievous

economic injury" to the operations of the employer.

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The Notice Requirement

If an employer plans to classify an employee as a “key employee” the employer

is required to notify the employee in writing at the time the employee provides

notice of his/her intent to take FMLA leave if the employer determines that the

“substantial and grievous economic injury” test has been met. The notice is

required to explain the basis for making that determination.

Options for the Employee

After an employee has been notified that he/she qualifies as a key employee, the

employee must return to work within a reasonable time period. If the employee

does not return to work within that time period the employer is not required to

restore the employee to his/her previous job; however, the employee continues

to receive FMLA benefits (medical coverage) during the time the employee is out

on FMLA leave. His/her job, however, will be denied at the time the employee

would otherwise return to work.

If you have been notified by your employer that you are considered a “key

employee” and you have questions or concerns regarding that designation, be

sure to consult with an experienced Pennsylvania employment law attorney right

away.

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About Curley & Rothman, LLC

Curley & Rothman, LLC is a boutique firm of

commercial lawyers serving clients ranging from

individuals to Fortune 500 corporations in

Pennsylvania and New Jersey. We provide

clients with experienced, skilled, and honest

advice and representation in commercial and

business-related legal matters. Our mantra is

"Relentless Representation" and we hold to it.

We are determined to do everything possible to

provide you with the competitive edge you need to win.

At the Conshohocken law firm of Curley & Rothman, LLC, we understand your time and

resources are valuable, so we will not waste them by agreeing to represent you in a case in

which you cannot prevail. If we agree to take your case, it is because we are confident we can

come up with winning strategies for you. Contact us now by calling 610-834-8819 to schedule

your free consultation today.

Spring Mill Corporate Center

1100 East Hector Street

Suite 425, Conshohocken, PA 19428

www.curleyrothman.com

Phone: 610-834-8819

Fax: 610-834-8813