Key EE continuation rights under FMLA

I saw mention in another thread that FMLA benefits automatically terminate if the employee gives notice that s/he does not intend to return to work. The only reference I could find is the second sentence in the following paragraph.

29 CFR 825.219 (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.

Does this continuation right apply to all employees, or only Key employees? Plus, is the recovery of the health benefit premiums only delayed until termination of employment, or can you NOT EVER recover health premiums from Key employees? Or is it conditional - if they return to work, you can recover, but if they terminate, you can't?

I feel silly posting this, like I can't reason it out for myself. But I have exactly this issue going on right now, and I want to make sure I'm handling things the right, legal way. A key employee announced in mid-June her retirement, effective Sept. 30, due to ongoing medical problems. Then two weeks later she discovers the condition won't ever let her return to work. FMLA protection would run out ~10 days before her stated retirement date, but if we're not allowed to extend FMLA protection to someone we know isn't returning to work, I need to know immediately.


  • 1 Comment sorted by Votes Date Added
  • In that context, the only type of employee who would be advised that the employer intended to deny restoration would be a 'key employee'. In that event, the employer can not recover premium amounts paid.

    The continuation right applies to all employees. Even though the employee sends word or it is rumored or perhaps they told you that they were not going to return, you cannot do much of anything until "D-Day" arrives and the employee has not shown up for work.

    I don't know how one might recover premium money after the employee has not returned.

Sign In or Register to comment.