(a) In order to deny restoration to a key employee, an employer must determine that the 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.
(b) An employer may take into account its ability to replace on a temporary basis (or temporarily do without) the employee on FMLA leave. If permanent replacement is unavoidable, the cost of then reinstating the employee can be considered in evaluating whether substantial and grievous economic injury will occur from restoration; in other words, the effect on the operations of the company of reinstating the employee in an equivalent position.
(c) A precise test cannot be set for the level of hardship or injury to the employer which must be sustained. If the reinstatement of a key employee threatens the economic viability of the firm, that would constitute substantial and grievous economic injury. A lesser injury which causes substantial, long-term economic injury would also be sufficient. Minor inconveniences and costs that the employer would experience in the normal course of doing business would certainly not constitute substantial and grievous economic injury.
(d) FMLA's substantial and grievous economic injury standard is different from and more stringent than the undue hardship test under the ADA. See also § 825.702.
Notes of Decisions
Johnson v. Resources for Human Dev., Inc., 789 F. Supp. 2d 595 (E.D. Pa. 2011).
“29 C.F.R. § 825.218 . The exemption thus allows employers to deny restoration if they show two elements: that the employee was key and that restoration would cause substantial and grievous economic injury.”
Garrity v. Klimisch (D.S.D. 2020).
· cites it 3× “; see also 29 C.F.R. § 825.218 (a). “If permanent replacement is unavoidable, the cost of then reinstating the employee can be considered in evaluating whether substantial and grievous economic injury will occur from restoration.”
Jackson v. Norfolk S. Ry. Co. (N.D. Ga. 2023).
“5 In her opposition to summary judgment, Plaintiff did not contend Defendant’s refusal to reinstate her was retaliation; instead, she said it was a violation of 29 C.F.R. § 825.218 (a). (Dkt. 88-1 at 24–25.”
Douglas v. Dreamdealers USA, LLC (D. Nev. 2019).
“29 C.F.R. § 825.218 (b). In contrast, if the employer is 21 harmed by an employee’s poor performance, it can fire him for that poor performance, so long as FMLA leave is not also a negative factor in the decision.”
Kephart v. Cherokee Cnty., NC (4th Cir. 2000).
· cites it 2× “See 29 C.F.R. § 825.218 (a) (1999). "If permanent replacement is unavoidable, the cost of then reinstating the employee can be considered in evaluating whether substantial and grievous economic injury will occur from res- 10 toration.”
Kephart v. Cherokee Cnty., NC, 52 F. Supp. 2d 607 (W.D.N.C. 1999).
· cites it 2× “29 C.F.R. § 825.218 . The Court has been unable to find any case interpreting the regulation or the statute pursuant to which it was promulgated.”
Daugherty v. Wabash Ctr., Inc., 572 F. Supp. 2d 1003 (N.D. Ind. 2008).
“217 , and the absence of the employee must cause the employer a substantial and grievous loss, 29 C.F.R. § 825.218 . 4 . This occurred despite an audit of the Defendants' computer system completed in May 2006, which revealed that the system was in good condition.”
Kephart v. Cherokee Cnty., 52 F. Supp. 2d 598 (W.D.N.C. 1999).
“29 C.F.R. § 825.218 (c). .Exhibit 42 attached to Plaintiff's Exhibit D contains the notice provided to the Plaintiff that the Defendant County considered him to be a key employee.”
Panza v. Grappone Companies, 2000 DNH 224 (D.N.H. 2000).
“23, 1999) (emphasis added); see also 29 C.F.R. § 825.218 (b) (addressinq what "substantial and qrievous injury means and discussinq takinq into account employer's ability to replace on temporary basis or need for permanent replacement).”
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