FMLA Leave for Key Employees

Who Is a Key Employee?

The FMLA provides special rules with regard to reinstatement following leave for “key employees.”  A key employee is a salaried FMLA-eligible employee who is among the highest paid 10% of all employees (including both salaried and non-salaried, eligible and ineligible employees) employed by the employer within 75 miles of the employee's worksite.

In determining the key employee’s compensation, the employer must divide the employee’s year-to-date earnings (including wages, premium pay, incentive pay, and bonuses) by the number of weeks the employee has worked, including weeks in which paid leave was taken. 

The employer must determine whether an employee is a key employee at the time the employee gives notice of the need for FMLA leave.