(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 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.
