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Key Employee Regardless of how devoted you may be to your job and your employer, you may one day face a family or medical crisis that requires you to take a significant amount of time off of work.

Fortunately, your position with your employer may be safe, despite your leave of absence, if you qualify to take leave under the Family and Medical Leave Act, or FMLA.

Most employees who are eligible for leave under the FMLA may take unpaid, but job protected, leave for up to 12 weeks for a covered family or medical reason.

Before you count on getting your job back, however, make sure you are not classified as a “key employee.”

The rules for a key employee under the FLMA are different than those for all other employees, making it critical that you know if you are considered a key employee by your employer.


Under the rules of the FMLA, an eligible employee who is working for a covered employer may take up to 12 weeks of job protected, though unpaid, leave for any of the following reasons:

  • The birth of a child and to care for the newborn child within one year of birth
  • The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement
  • To care for the employee’s spouse, child, or parent who has a serious health condition;
  • a serious health condition that makes the employee unable to perform the essential functions of his or her job
  • Any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty


The general rule for most employees is that if you are granted FMLA leave, your employer must restore you to your original position, or to an “equivalent” job when you return from leave. An “equivalent” job means a job that is “virtually identical to the original job in terms of pay, benefits, and other employment terms and conditions.” If, however, you are considered a “key employee” the rules change.

The FMLA defines a “key employee” as a “salaried, FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite.” An employer is not required to restore a key employee’s job upon return from FMLA leave. To deny restoration of your position as a key employee, your employer must be able to claim that “restoration of the employee to employment will cause “substantial and grievous economic injury” to the operations of the employer, not whether the absence of the employee will cause such substantial and grievous injury.”

If your employer intends to claim you are a key employee, and potentially deny restoration of your position after FMLA leave, you must be notified of that intention in writing and explain why you are considered a key employee.

Furthermore, your employer must provide you with the opportunity to return to work after being notified of your status as a key employee.

If you have additional questions or concerns about FMLA leave in general, or your status as a “key employee” specifically, contact the experienced Florida employment law attorneys at Celler Legal, P.A. by calling 954-716-8601 to schedule your appointment.