Human Resource Blog

FMLA Exclusions?

	Benefits
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A friend has decided to not have a surgical procedure done because her employer’s Employee Handbook/Policy (under FMLA) states if an employee is in the top 10% salary-wise of all of the company’s employees, their position or any other position with the company is not guaranteed when they are released to return to work. Can a company do this?

Yes, this is probably legal. The FMLA excludes “key employees” from coverage under the law. That’s because it’s not reasonable to think that a CEO, Vice President or other senior executive of the company can take 3 months off without severely damaging the business. Your friend could check with the US Department of Labor as far as the company’s definition of “key employees” as those in the top 10% salary-wise, but it seems reasonable to us.

What doesn’t seem reasonable is that your friend is choosing to postpone necessary surgery because he may lose his job. It’s much easier to find a new job than to find a new body. If your friend’s health is at stake, please urge him to do the right thing. Who knows — he may find a better job after his surgery.