C.F.R. » Title 29 » CHAPTER V—WAGE AND HOUR DIVISION, DEPARTMENT OF LABOR › SUBCHAPTER C—OTHER LAWS › PART 825—THE FAMILY AND MEDICAL LEAVE ACT OF 1993 › Subpart B—Employee Leave Entitlements Under the Family and Medical Leave Act

29 C.F.R. § 825.219

Rights of a key employee

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(a) An employer who believes that reinstatement may be denied to a key employee, must give written notice to the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier) that he or she qualifies as a key employee. At the same time, the employer must also fully inform the employee of the potential consequences with respect to reinstatement and maintenance of health benefits if the employer should determine that substantial and grievous economic injury to the employer's operations will result if the employee is reinstated from FMLA leave. If such notice cannot be given immediately because of the need to determine whether the employee is a key employee, it shall be given as soon as practicable after being notified of a need for leave (or the commencement of leave, if earlier). It is expected that in most circumstances there will be no desire that an employee be denied restoration after FMLA leave and, therefore, there would be no need to provide such notice. However, an employer who fails to provide such timely notice will lose its right to deny restoration even if substantial and grievous economic injury will result from reinstatement.

(b) As soon as an employer makes a good faith determination, based on the facts available, that substantial and grievous economic injury to its operations will result if a key employee who has given notice of the need for FMLA leave or is using FMLA leave is reinstated, the employer shall notify the employee in writing of its determination, that it cannot deny FMLA leave, and that it intends to deny restoration to employment on completion of the FMLA leave. It is anticipated that an employer will ordinarily be able to give such notice prior to the employee starting leave. The employer must serve this notice either in person or by certified mail. This notice must explain the basis for the employer's finding that substantial and grievous economic injury will result, and, if leave has commenced, must provide the employee a reasonable time in which to return to work, taking into account the circumstances, such as the length of the leave and the urgency of the need for the employee to return.

(c) If an employee on leave does not return to work in response to the employer's notification of intent to deny restoration, the employee continues to be entitled to maintenance of health benefits and the employer may not recover its cost of health benefit premiums. A key employee's rights under FMLA continue unless and until the employee either gives notice that he or she no longer wishes to return to work, or the employer actually denies reinstatement at the conclusion of the leave period.

(d) After notice to an employee has been given that substantial and grievous economic injury will result if the employee is reinstated to employment, an employee is still entitled to request reinstatement at the end of the leave period even if the employee did not return to work in response to the employer's notice. The employer must then again determine whether there will be substantial and grievous economic injury from reinstatement, based on the facts at that time. If it is determined that substantial and grievous economic injury will result, the employer shall notify the employee in writing (in person or by certified mail) of the denial of restoration.

Notes of Decisions
Cited in 14 cases (1 in the last 5 years), 2000–2022 · leading case: DePaula v. Easter Seals El Mirador, 859 F.3d 957 (10th Cir. 2017).
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DePaula v. Easter Seals El Mirador, 859 F.3d 957 (10th Cir. 2017). “DePaula argues ESEM failed to follow 29 C.F.R. § 825.219 , giving rise to an inference of pretext.”
Nancy Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706 (2d Cir. 2001). “110 (d) 6 ; see also 29 C.F.R. § 825.219 (a) (employer must, prior to employee taking leave, notify em *726 ployee that employee is ineligible for FMLA protection because she is a “key employee”).”
Gary Waag v. Sotera Def. Solutions, Inc., 857 F.3d 179 (4th Cir. 2017). “” 29 C.F.R. § 825.219 (b). Waag figures that Sotera is seeking the benefits of this provision without identifying him as a key employee or complying with the notice provision.”
Tina R. Thomas, O.D. v. Pearle Vision, Inc., 251 F.3d 1132 (7th Cir. 2001). · cites it 2× “Thomas further claimed that Pearle breached the contract when it failed to comply with the provision of the FMLA that an employer give highly compensated employees written notice at the time leave was requested that it intended to deny job restoration on the completion of leave.”
Neel v. Mid-Atl. of Fairfield, LLC, 778 F. Supp. 2d 593 (D. Maryland 2011). · cites it 7× “Under 29 C.F.R. § 825.219 (a), An employer who believes that reinstatement may be denied to a key employee, must give written notice to the employee at the time the employee gives notice of the need for FMLA leave (or when FMLA leave commences, if earlier) that he or she…”
Oby v. Baton Rouge Marriott, 329 F. Supp. 2d 772 (M.D. La. 2004). “29 C.F.R. § 825.219 (a). 57 . 29 U.S.C. § 2614 (b)(2).”
Woodford v. Cmty. Action of Greene Cnty., Inc., 268 F.3d 51 (2d Cir. 2001). “2d at 101 (quoting 29 C.F.R. § 825.219 (a)). Woodford’s state law claim of intentional infliction of emotional distress was dismissed for lack of jurisdiction in the wake of the dismissal of her federal claims.”
Woodford v. Cmty. Action of Greene Cnty., Inc., 103 F. Supp. 2d 97 (N.D.N.Y. 2000). “be 29 C.F.R. § 825.219 (a). Plaintiff requested placement on family leave under the FMLA in a letter dated Tuesday, 18 November 1997, asking that her leave be effective one day earlier.”
Wertheim v. James F. Potter, In his Off. Capacity As Sheriff of DeSoto Cnty. (M.D. Fla. 2022). · cites it 4× “; 29 C.F.R. § 825.219 (a)-(b); Neel v. Mid-Atl.”
Jennifer Lane v. Grant Cnty., 610 F. App'x 698 (9th Cir. 2015). “The County did not comply with 29 C.F.R. § 825.219 when the County decided not to restore Lane.”
Garrity v. Klimisch (D.S.D. 2020). · cites it 2× “” 29 C.F.R. § 825.219 (b). Among other things, the notice must explain the basis for the employer’s finding that substantial and grievous economic injury will result from the restoration to employment.”
Murphy v. Fedex Nat. Ltl, Inc., 582 F. Supp. 2d 1172 (E.D. Mo. 2008). “6; see also 29 C.F.R. § 825.219 (a) (employer must, prior to employee taking leave, notify employee that employee is ineligible for FMLA protection because she is a "key employee").”
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