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Ask The Lawyer By: Daniel A. Gwinn, Esq.

| August 14, 2017


QUESTION: Our VP of Marketing/Communications recently requested leave under the Family and Medical Leave Act (FMLA) for medical treatment. She requested the full 12 weeks. She’s eligible for the leave, but the company really can’t manage without a highly skilled person in that position. She’s one of our top people – we can’t leave that position open for three months. What can we do? Can we hire someone else? There are not a lot of people at her level who would want to come on board for such a short stint, and if we hire someone, we won’t be able to give our VP her job back after leave.


The FMLA recognizes that it is very difficult for a business to function without its “key employees” – defined as a salaried employee who is among the highest 10 percent of all employees within 75 miles of the worksite.

Key employees – unlike their lower-level counterparts – may be denied reinstatement after FMLA leave IF the employer can show “substantial and grievous economic injury to the employer’s operations will result if the employee is reinstated from FMLA.” But the focus is not on whether the key employee’s absence will cause the harm, but whether his or her reinstatement will cause such harm. CFR 825.218.

A key employee must be provided written notice at the time he or she requests FMLA leave, or as soon as is reasonably practicable, that he or she is a key employee, and may be denied restoration to the position if restoration would result in “substantial and grievous economic injury.” An employer who fails to provide this timely notice “will lose its right to deny restoration even if substantial and grievous economic injury will result from reinstatement.” CFR 825.219.

Even where an employer provides the written notice, in a timely fashion, this will not be enough to allow the employer to refuse to return the key employee to his or her job if the notice does not explain in detail the basis for the employer’s belief that substantial and grievous harm will result if the key worker is returned to his or her position after FMLA leave. And, under any scenario, the employer may not deny an eligible key employee FMLA leave.

Typically, the scenario is much as the one you present. The position must be filled, and there are no qualified candidates willing to take on the job on a short-term basis, and no internal candidates are fully qualified to do the work. As a result, the company hires a replacement, and then has no position to offer the key employee when he or she returns from leave. But, having to choose between the rock of firing the replacement so the key employee can return and the hard place of keeping the replacement, and being unable to offer the key employee reinstatement is not easy: The standard for proving the level of harm required by the FMLA is very high.

Employers faced with this unhappy situation should make sure they have fully satisfied the FMLA before replacing a key worker who is out on leave. Key employees who lose their jobs because they took leave are notoriously litigious.

An experienced attorney may be able to advise you on the best course of action

The lawyers at GWINN TAURIAINEN PLLC are experienced attorneys and are happy to answer your questions. Give us a call for a free initial telephone consultation about your legal needs. For consideration of your questions in our web column, please submit your inquiry on the “Contact Us” page of our website at

Information provided on “Ask the Lawyer” is current as of the date of publication. Laws and their interpretation are subject to change. The material provided through “Ask the Lawyer” is informational only; it should not be considered legal advice. Submitting a question to “Ask the Lawyer” does not create an attorney-client relationship between the person submitting the question and GWINN TAURIAINEN PLLC. To view previous columns, please visit our website.

GWINN TAURIAINEN PLLC, is a Troy based law firm representing clients from Warren, Sterling Heights, Ferndale, Royal Oak, Oak Park, Oakland and Wayne Counties and all of Southeast Michigan

By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
901 Wilshire Drive, Suite 550
Troy, MI 48084
(248) 247-3300
(248) 247-3310 facsimile

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