[Code of Federal Regulations]

[Title 29, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 29CFR825.219]



[Page 775-776]

 

                             TITLE 29--LABOR

 

         CHAPTER V--WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR

 

PART 825_THE FAMILY AND MEDICAL LEAVE ACT OF 1993--Table of Contents

 

 Subpart B_What Leave Is an Employee Entitled To Take Under the Family 

                         and Medical Leave Act?

 

Sec.  825.219  What are the rights of a key employee?



    (a) An employer who believes that reinstatement may be denied to a 

key employee, must give written notice to the employee at the time the 

employee gives notice of the need for FMLA leave (or when FMLA leave 

commences, if earlier) that he or she qualifies as a key employee. At 

the same time, the employer must also fully inform the employee of the 

potential consequences with respect to reinstatement and maintenance of 

health benefits if the employer should determine that substantial and 

grievous economic injury to the employer's operations will result if the 

employee is reinstated from FMLA leave. If such notice cannot be given 

immediately because of the need to determine whether the employee is a 

key employee, it shall be given as soon as practicable after being 

notified of a need for leave (or the commencement of leave, if earlier). 

It is expected that in most circumstances there will be no desire that 

an employee be denied restoration after FMLA leave and, therefore, there 

would be no need to provide such notice. However, an employer who fails 

to provide such timely notice will lose its right to deny restoration 

even if substantial and grievous economic injury will result from 

reinstatement.

    (b) As soon as an employer makes a good faith determination, based 

on the facts available, that substantial and grievous economic injury to 

its operations will result if a key employee who has given notice of the 

need for FMLA leave or is using FMLA leave is reinstated, the employer 

shall notify the employee in writing of its determination, that it 

cannot deny FMLA leave, and that it intends to deny restoration to 

employment on completion of the FMLA leave. It is anticipated that an 

employer will ordinarily be able to give such notice prior to the 

employee starting leave. The employer must serve this notice either in 

person or by certified mail. This notice must explain the basis for the 

employer's finding that substantial and grievous economic injury will 

result, and, if leave has commenced, must provide the employee a 

reasonable time in which to return to work, taking into



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account the circumstances, such as the length of the leave and the 

urgency of the need for the employee to return.

    (c) If an employee on leave does not return to work in response to 

the employer's notification of intent to deny restoration, the employee 

continues to be entitled to maintenance of health benefits and the 

employer may not recover its cost of health benefit premiums. A key 

employee's rights under FMLA continue unless and until the employee 

either gives notice that he or she no longer wishes to return to work, 

or the employer actually denies reinstatement at the conclusion of the 

leave period.

    (d) After notice to an employee has been given that substantial and 

grievous economic injury will result if the employee is reinstated to 

employment, an employee is still entitled to request reinstatement at 

the end of the leave period even if the employee did not return to work 

in response to the employer's notice. The 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, the employer 

shall notify the employee in writing (in person or by certified mail) of 

the denial of restoration.