The Key Employee Exception: When FMLA Job Protection Doesn't Apply
Highly paid employees may not have full FMLA job protection. Learn what the key employee exception means and whether it applies to you.
Introduction
FMLA guarantees job restoration—except for "key employees." If you're in the highest-paid 10% at your company, your employer may deny reinstatement under limited circumstances.
What Is a Key Employee?
A **key employee** is a salaried employee who: - Is among the **highest-paid 10%** of employees within 75 miles - Whose absence would cause **substantial and grievous economic injury** to the employer
Both conditions must be met.
What Employers Must Do
### Notification Required If your employer determines you're a key employee: 1. They must notify you **at the time you request leave** 2. Explain that reinstatement may be denied 3. Provide their reasons in writing
### No Surprise Denials An employer cannot wait until you're returning to spring this on you. If they didn't notify you upfront, they generally can't invoke this exception.
What "Substantial and Grievous Economic Injury" Means
This is a high bar. It's not just inconvenience or cost. Examples might include: - Company cannot function without you specifically - Significant financial losses directly attributable to your absence - No reasonable alternative to maintain operations
**General inconvenience or cost of hiring a temp does not qualify.**
Your Rights as a Key Employee
Even if designated as a key employee: - You can still **take** FMLA leave - Your health insurance continues during leave - Only **job restoration** can be denied—not leave itself
What Happens If You're Denied Restoration
If your employer determines reinstatement would cause grievous harm: 1. They notify you and explain 2. You can choose to return immediately 3. If you don't return, they can fill your position 4. You're still not penalized for taking leave you were entitled to
How Common Is This Exception?
Rare. Most employers don't invoke it because: - The "grievous injury" standard is hard to prove - It creates legal risk if challenged - It applies to very few employees
If You Think It's Being Misused
- Request the employer's written determination
- Ask for specific economic justification
- Consult an attorney—this exception is often improperly invoked
Conclusion
The key employee exception exists but is narrow. If your employer claims it applies, demand documentation and understand your right to take leave even if restoration is uncertain.
*LEGAL DISCLAIMER: The information provided on this website is for general informational purposes only and is not intended to be legal advice. Nothing on this site should be taken as legal advice for any individual case or situation. Consult with a qualified employment attorney for guidance specific to your circumstances.*
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