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May 9, 2009   
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Content Last Revised: 11/17/2008
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CFR  

Code of Federal Regulations Pertaining to ESA

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Title 29  

Labor

 

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Chapter V  

Wage and Hour Division, Department of Labor

 

 

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Part 825  

The Family and Medical Leave Act of 1993

 

 

 

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Subpart B  

Employee Leave Entitlements Under the Family and Medical Leave Act


29 CFR 825.219 - Rights of a key employee.

  • Section Number: 825.219
  • Section Name: 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 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.
[73 FR 68095, Nov. 17, 2008]
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