Exceptions To FMLA Job Restoration Rights

A. Key Employees Highly paid, salaried “key employees“ (among the top 10% in pay within a 75-mile radius) may not be guaranteed job restoration if:

• Restoration would cause substantial and grievous economic injury to the business
• The employee is notified in writing of their status and the potential denial of restoration at the time FMLA is requested

B. Layoffs or Restructuring If the employee's job would have been eliminated regardless of FMLA leave (e.g., due to a layoff or reorganization), restoration is not required. But:

• The employer must prove the decision was unrelated to the leave. For an HR Generalist, this requires strict human resources compliance.
• Documentation is key to defend against retaliation claims under labor law.

C. Employee Cannot Perform Essential Functions If the employee is medically unable to perform the essential functions of the job when FMLA ends:

• The employer is not required to restore the employee
• BUT: This may trigger a need to explore reasonable accommodations under the ADA.

Note: This is an excerpt from our FMLA Training & Certification Program.