Learn About This Important Leave Act & Which Employees are Eligible
The Family and Medical Leave Act: Not all Employees Qualify
This article outlines the Family and Medical Leave Act and which employees are eligible. If you are an employer with fifty or more employees, understanding this law is important to avoid costly litigation for wrongfully denying leave to an employee.
FMLA Leave: Who is a Key Employee?
The Family and Medical Leave Act (FMLA) was passed in 1993, allowing employees to take unpaid leave while requiring their employer to retain their position with the company for a period. FMLA requires that employers with 50 or more employees, must provide 480 hours (plus an additional 40 hours in Colorado) of unpaid leave per year to an employee under certain conditions dealing with health or family concerns. But did you know that not all employees are eligible for FMLA leave? If an employee is considered a “key employee” their leave can be denied by written notice. Key employee status is only applicable for salaried employees who are within the companies top 10% of earnings for employees within 75 miles of their workplace.
“Substantial and Grievous Economic Injury”
The next factor for deciding who is a key employee is if their reinstatement will cause a “substantial and grievous economic injury” to the operations of the employer. There is no precise test to make this determination but some important points to consider is the ability to temporarily replace the employee and the cost of reinstating the employee in determining the economic injury your business will suffer. This standard is tougher to meet than the “undue hardship” test under the Americans with Disabilities Act. When making this designation, be prepared to prove that their absence and reinstatement will cause substantial and grievous economic injury to your business.
Before denying leave to an employee, be sure you understand FMLA and its exceptions. Mistakenly denying leave to an employee could cause your business to end up in litigation. If you have any questions, contact a Colorado business attorney at Galvanize Law for more information.