Few employees expect to hear that their FMLA leave rights may be different from those of their coworkers. Yet employers sometimes designate certain workers as key employees, creating confusion about what happens when leave ends. The designation does not prevent you from taking FMLA leave, but it can affect whether an employer must restore you to your position afterward. If you have been told you fall into this category, it is important to understand who is a key employee under FMLA and what protections still apply to your situation.

What Is a Key Employee Under the FMLA?

There’s a common misconception that a “key employee” is only an executive. This isn’t an accurate definition. A key employee is someone who is in the 10% of highest-paid employees within 75 miles of the employer’s worksite.

Do Key Employees Still Have FMLA Rights?

Many employees are surprised to learn that FMLA rights for key employees are largely the same as they are for other eligible workers. Being classified as a key employee does not prevent someone from requesting or taking protected leave under the law.

Eligible employees may still qualify for FMLA leave because of a serious health condition, to care for a spouse, child, or parent with a serious health condition, after the birth or adoption of a child, or for certain military family reasons. The key employee designation generally affects reinstatement rights rather than leave eligibility itself.

When Can an Employer Deny Reinstatement to a Key Employee?

Most eligible employees who take FMLA leave have the right to return to the same or an equivalent position. This changes for key employees. Federal laws include exceptions if certain conditions are met. Employers don’t have to reinstate a key employee if:

1. Denial of restoration is “necessary to prevent substantial and grievous economic injury” to the employer’s operations,
2. The employee is notified of the employer’s intent to deny restoration upon the employer’s decision that this injury would occur, and
3. In any case where an employee has taken leave, the employee decides not to return to work after receiving this notice.

These conditions prevent an employer from automatically denying a key employee's reinstatement simply because of their “key” status. A grievous economic injury is a high standard for employers to meet. It’s more substantial than an ordinary inconvenience or increased costs.

An employer would need to show that the employee’s leave will cause significant operational disruptions. The financial harm these disruptions will bring cannot be reasonably avoided. The employee could have specialized duties that are difficult to replace with another employee. Each situation is fact-specific, requiring evidence and documentation to support an employer’s decision in a specific circumstance. For example, it may be easier to show significant disruptions when an employee leaves for an extended period rather than taking intermittent leave.

Notice Requirements for Ohio Employers

If an employer decides not to reinstate a key employee, they must follow specific procedures. The employee must be notified of their status in writing when leave is requested. If it isn’t immediately possible, the employer must issue notice as soon as practically possible.

When the employer determines that reinstatement isn’t possible, they must notify the employee. Notice of the intended job restoration denial must be given in writing and include an explanation of the substantial economic injury. The employee should be given a reasonable opportunity to decide whether to return or take leave, with the risk to their job. Failing to comply with notice requirements can expose the employer to legal liability.

What Should Ohio Employees Do If They Are Classified as a Key Employee?

The first step an employee should take when being classified as a key employee is to understand their status. Request clarification regarding how the employer determined key employee status. Keep a record of all communications with the employer. It’s especially important to keep records about key status determination, leave requests, and reinstatement notices. Consider consulting an Ohio employment attorney if reinstatement is denied or if there are concerns about FMLA interference or retaliation.

Protect Your FMLA Rights in Ohio

Being classified as a key employee under the FMLA does not mean you lose the protections provided by federal law. While the designation can affect reinstatement rights in certain situations, employers must follow specific legal procedures. Knowing how the key employee exception works is an important step toward protecting your interests and making informed decisions about leave.

Lalak LLC represents employees throughout Ohio in a wide range of workplace matters, including FMLA disputes and leave-related claims. If you have questions about your FMLA rights or believe your employer improperly denied reinstatement after leave, contact Lalak LLC to schedule a consultation.