August 28, 2018
Author: Edward H. Trent, Esq.
Organization: Wimberly Lawson Wright Daves & Jones, PLLC
A. Amount of Leave
From 1993, when the Family Medical Leave Act (FMLA) was first passed, until it was amended in January 2008, the amount of leave allowed for a qualifying FMLA leave of absence was 12 weeks, regardless of the actual qualifying reason(s). The 12 weeks of leave is available during a 12 month period counted in one of three ways as the discretion of the employer; 12 month rolling period, 12 month calendar period, or 12 month forward looking period. If the employer did not designate the method to be used, the one that was most advantageous to the employee would be utilized. The 12 weeks of leave counts regardless of whether it is all for a single qualifying reason, such as the employee’s own serious health condition, or whether for multiple qualifying reasons in that 12 month period, such as 3 weeks for the employee’s own serious health condition, 6 weeks for the adoption of a child, and 3 weeks to care for a parent with a serious health condition.
On January 28, 2008, President George W. Bush signed into law the National Defense Authorization Act (NDAA), which amended the FMLA to include two new reasons for leave, both concerning military service. The first reason addresses military exigencies related to a son, daughter or parent on covered active duty or with orders to covered active duty in the armed services. This leave is one of the reasons that now qualify for up to 12 weeks of FMLA protected leave in a 12 month period as addressed above. Military exigency leave may be used for one or more of the following circumstances:
1. Short-notice deployment of seven days or less advance notice of the deployment.
2. Military events and related activities such as official ceremonies or events, or family support or assistance programs, including informational briefings whether sponsored by the military or military service or support organizations.
3. Childcare or school activities for arranging for alternate childcare while the family member is away on military service, arranging for childcare related to the child’s immediate medical needs or welfare, to enroll in or transfer a child to a new school or day care facility, or attending meetings with staff at a school or day care to address the child’s needs, disciplinary issues, parent-teacher conferences, or other matters related to the military service member’s call to active duty.
4. Financial and legal arrangements such as updating a will, adding a power of attorney, or obtaining military identification cards.
5. Counseling for the employee, the military service member, or child related to the military service member’s active duty service or call to active duty.
6. Rest and Recuperation period related to the military service member being home on short-term, temporary rest and recuperation leave during the period of deployment.
7. Post-deployment activities such as arrival ceremonies, reintegration briefings and events, or in the event of the death of the military service member, addressing matters such as all funeral arrangements and related obligations.
The second added reason for leave is military caregiver leave that provides for up to 26 weeks of job protected FMLA leave to care for a family member who suffers from a serious health condition due to his or her military service. This 26 weeks of leave is only counted on a forward looking basis regardless of the method used to calculate the 12 month period for all other forms of FMLA protected leave. Additionally, an eligible employee is entitled to a 26 week leave period for each covered service member, so it is possible that an employee will be eligible for multiple 26 week covered leave periods simultaneously for covered family members, which includes, in addition to sons, daughters, and parents, brothers, sisters, and next of kin.
Tennessee also has a leave of absence law separate and apart from the FMLA for employers with 100 or more employees at a job site. Historically, the law was referred to as the Tennessee Maternity Leave Law. The law was amended in 2005 to cover both maternity and paternity leave.
The law provides that employees who have been employed by the same employer for at least 12 consecutive months as a full-time employee as determined by the employer “may be absent from such employment for a period not to exceed four (4) months for adoption, pregnancy, childbirth and nursing an infant, where applicable.” Accordingly, in addition to the 12 weeks of FMLA leave, the state law provides an additional four weeks of leave. Employers should promptly notify employees at the commencement of such leave, or at the time such leave is approved and authorized, that the leaves under the federal and state laws will run concurrently.
B. Leave to Care for Parent
The FMLA provides for leave to care for a son, daughter, or parent suffering from a serious health condition. This includes a son, daughter, or parent who suffers from a serious health condition suffered as a result of military service.
Generally speaking, the FMLA defines “serious health condition” as “an illness, injury, impairment, or physical or mental condition that involves – (a) inpatient care in a hospital, hospice, or residential medical care facility; or (b) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11). The condition needs to be one that prevents the family member from caring for him or herself, which includes things such as cooking, cleaning, bathing, and other daily activities.
Additionally, the phrase “to care for” is to be read broadly to include both physical and psychological care that may be required. In this regard, the employee need not be the only individual or even the only family member available to provide care to the parent with a serious health condition. The employee may be needed to give a professional caregiver or other family members a break during the day in providing care or to perform tasks that allow someone else to remain with the sick parent.
The term “parent” is defined as “a biological, adoptive, step or foster father or mother, or any other individual who stood in loco parentis to the employee when the employee was a son or daughter as defined in paragraph (d) of this section. This term does not include parents “in law.”” 29 C.F.R. § 825.122. This means that if an employee had someone care for him or her as a child who “stood in loco parentis” to that employee, then the employee is entitled to leave to care for that person even though the individual was never the employee’s biological, adoptive, or step parent or even a legal guardian.
The law also provides that if a husband and wife are employed by the same covered employer and are eligible for FMLA leave, they may be limited to a combined total of 12 weeks of leave during any 12-month period “if the leave is taken to care for the employee’s parent with a serious health condition, for the birth of the employee’s son or daughter or to care for the child after the birth....” It must be noted that in the event one spouse is not eligible for FMLA leave, the other spouse is entitled to the full 12 weeks of FMLA leave to care for a parent.
This may mean that if the wife takes 10 weeks of leave to care for her mother, the husband who works for the same company will be limited to 2 weeks of leave to care for his sick parent during the same 12 month period.
Of course, if the parent suffers from a serious health condition as a result of the parent’s qualifying military service, then the employee may be eligible to take up to 26 weeks of FMLA protected leave to care for his or her parent. This assumes the employee requests leave within five years of the parent’s discharge from active duty. If the parent was discharged more than five years prior to the request for leave, the leave would still be covered under the FMLA’s 12 week leave protections, but would not qualify for the 26 week military caregiver leave. While regular FMLA leave does not apply to a parent “in law,” military exigency leave is available to allow an employee to take leave to care for his or her parent “in law” if the employee’s spouse is away on active military duty. 29 C.F.R. § 126(a)(8). “The parent of the military member must be incapable of selfcare” and be a “parent” as broadly defined above. So, while the FMLA does not provide for leave to care for a parent “in law,” that limitation will not apply if an employee needs leave to care for a parent “in law” because the employee’s spouse is away on active military duty.
Intermittent leave or a reduced leave schedule may be used when a leave of absence is needed to care for a parent suffering from a serious health condition.
C. Intermittent or Reduced Schedule Leave
The law provides that FMLA-qualifying leave can be taken “intermittently or on a reduced leave schedule” under certain circumstances. As defined, “intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason.” 29 C.F.R. § 825.202. Likewise, reduced leave schedule is defined as “a leave schedule that reduces an employee’s usual number of working hours per workweek, or hours per workday.” 29 C.F.R. § 825.202. A reduced leave schedule includes when the employee is required to convert from a full-time schedule to a part-time schedule for an FMLA-qualifying reason. The law provides a “medical necessity” component before an employee is entitled to intermittent leave or to work on a reduced leave schedule. This simply means that there must be a medical need for the leave and that the medical need “can be best accommodated through an intermittent or reduced leave schedule.”
The law is broad and allows intermittent or a reduced leave schedule when medically necessary for either planned or unanticipated treatment or periods of incapacity. The law provides that the leave period could be from as little as one hour to as much as the full 12 or 26 weeks. 29 C.F.R. § 825.202(b)(1). Examples of intermittent leave include “leave taken on an occasional basis for medical appointment, or leave taken several days at a time spread over a period of six months, such as for chemotherapy.” Examples of intermittent or reduced leave schedule also applies in pregnancy situations, such as attending a prenatal examination. Also, intermittent leave may be used, for example, for periods of severe morning sickness.
Another example of intermittent leave or leave on a reduced leave schedule is when an employee is recovering from his or her own serious health condition and is released to return to work by the health care provider, but at less than a full schedule. Restrictions may include, for example, working four hours a day for two weeks, then six hours a day for two weeks, before building back up to eight-hour workdays. In such circumstances, if FMLA-qualifying leave is available, the employee is utilizing a reduced leave schedule.
The law provides guidance on how an employer is to calculate intermittent or reduced schedule leave to determine how much FMLA leave is utilized. The analysis begins with identification of the employee’s regular workweek. For example, if an employee ordinarily works 40 hours a week and takes off 8 hours, then the employee would use 1/5 of a week of FMLA leave. Likewise, if an employee regularly worked 8 hours a day but was on a reduced leave schedule of 4 hours a day, then that week the employee would use 1/2 week of FMLA qualifying leave. The law also allows a pro rata analysis if an employee works less than 40 hours. For example, if an employee ordinarily works 30 hours a week but only works 20 hours a week under a reduced leave schedule, then the employee’s 10 hours of leave would constitute 1/3 of a week of FMLA-qualifying leave.
The law also addresses the situation when employees are not able to work required overtime due to an FMLA-qualifying reason. If an employee is prohibited from working overtime because of an FMLA-qualifying reason, then the hours which the employee would have been required to work, including overtime, may be counted against the employee’s FMLA leave entitlement. For example, an employee regularly scheduled to work five 10-hour days (50 hours per week) who misses two days (20 hours) or is on a reduced schedule of only 30 hours per week would use 2/5 of a week of FMLA leave each week he or she was on such a schedule. Voluntary overtime hours are not included in such calculations. 29 C.F.R. § 825.205(c).
When it comes to the birth or placement of a child for adoption or foster care, the law provides that an employee can only utilize intermittent leave or leave on a reduced leave schedule if the employer agrees. 29 C.F.R. § 825.202(c).
D. Scheduling Intermittent or Reduced Schedule Leave
The law has always provided that if an employee is going to utilize intermittent or reduced schedule leave “for planned medical treatment” that the employee is to make “a reasonable effort to schedule the treatment so as not to disrupt unduly the employer’s operations.” 29 C.F.R. § 825.203.
E. Transferring Employees
When an employee’s FMLA-qualifying leave of absence is taken intermittently or on a reduced leave schedule, the FMLA allows an employer to transfer an employee to an alternate position during such periods of leave. 29 C.F.R. § 825.204.
Simply stated, the law allows an employer to temporarily transfer an employee to an available, alternate position during a period of intermittent leave or leave taken on a reduced leave schedule that “better accommodates’ recurring periods of leave than the employee’s regular position. 29 C.F.R. § 825.204(a). Obviously, the employee has to be qualified for the alternate position and it is for the most part in the employer’s discretion to determine if an alternate position better accommodates the recurring periods of leave when compared to the employee’s regular position. 29 C.F.R. § 825.204(a).
One caveat when considering a transfer or reassignment of an employee on a temporary basis to better accommodate intermittent leave or leave on a reduced leave schedule is the requirement that the alternative position must have equivalent pay and benefits. 29 C.F.R. § 825.204(c). The law provides, however, that it is not necessary for such an alternative position to have equivalent duties. Although flexibility is not necessarily one of the hallmarks of the FMLA, the law does allow an employer to simply increase pay and benefits of an alternative position to satisfy the requirement that the alternative position have equivalent pay and benefits when compared to the employee’s regular job. If the alternative position is a part-time job with the same hourly rate of pay and benefits, the employer may transfer the employee to such position provided, however, that the employee cannot be required to utilize more FMLA leave than is medically necessary.
Another caveat to transferring an employee during a period of intermittent leave or leave on a reduced leave schedule is an obvious sense of fairness. The law expressly provides that an employer cannot transfer an employee to an alternative position “in order to discourage the employee from taking leave or otherwise work a hardship on the employee.” 29 C.F.R. § 825.204(d). For example, the law expressly utilizes examples of not allowing a white collar employee to be transferred to a blue collar position. Another example is that an employee working day shift cannot be reassigned to the graveyard shift as such might discourage an employee from taking full advantage of rights under the FMLA.
As is the case with any other FMLA-qualifying leave of absence, at the time intermittent leave or leave on a reduced schedule leave ends, an employee that has been temporarily transferred to an alternate position must be returned to the same or equivalent job as the job the employee held when the leave commenced. Also, as is consistent with provisions in relation to a regular FMLA qualifying leave of absence, the employee cannot be required to utilize more leave than is medically necessary. 29 C.F.R. § 825.204(e).
F. Incremental Use of Leave
Incremental use of leave addresses increments of leave when leave is taken intermittently or on a reduced schedule. Specifically, 29 C.F.R. § 825.205(a)(1) provides:
When an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further than an employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.
If circumstances exist whereby an employer accounts for use of leave in varying increments at different times of the day or a particular shift, then the employer is prohibited from accounting for FMLA leave in larger increments “than the shortest period used to account for other leave during the period in which the FMLA leave is taken.” In other words, if an employer will allow employees to use paid or unpaid leave in 15 minute increments, then the employer must allow an employee to use FMLA leave in 15 minute increments. On the other hand, if an employer requires an employee to use paid time off in two or four hour increments, the employer can still only require the employee to take FMLA leave in one hour increments. Consistent with the tone of the FMLA, an employer simply must account for FMLA-qualifying leave the same as it would treat non FMLA-qualifying leaves of absence, but still not require an employee to use more FMLA leave than is needed with a maximum minimum leave time of one hour.
G. Substitution of Paid Leave
Generally, leave taken under the FMLA is unpaid. The Act does not require any portion of the leave to be paid leave. However, the Act permits an employee to substitute accrued paid leave under certain circumstances. Likewise, an employer is permitted to require an employee to substitute accrued paid leave for any portion of an FMLA-qualifying leave. There are, of course, limits on the substitution of paid leave. For example, if an employee is on a paid leave of absence pursuant to a state workers’ compensation law, or on an STD/LTD leave of absence, the employer may not also require the employee to substitute other paid time off such as vacation or sick time. That is, the law does not allow “double dipping”.
With the 2009 amendments came revised forms, including a revised Form WH-381, currently entitled “Notice of Eligibility and Rights & Responsibilities”. Within subpart B, Rights & Responsibilities for Taking FMLA Leave, is a section that allows an employer to designate the amount of paid leave that may be required to be substituted during the FMLA absence.
Substitution of paid leave is covered in 29 C.F.R. § 825.207. The term “substitute” is defined in the Act to mean “that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave.” As noted, the law allows an employee to request and an employer to require the substitution of paid leave during any period of unpaid FMLA leave.
As noted above, the law does not allow “double dipping” when it comes to the substitution of paid leave. However, the law does provide that employers and employees may agree, if state law permits, to have paid leave supplement workers’ compensation benefits. For example, workers’ compensation benefits usually are equal to two-thirds of an employee’s average weekly wage. As long as state law permits, the FMLA likewise permits an employer and employee to agree to the use of paid leave to make up the one-third difference between workers’ compensation leave and an employee’s regular salary. 29 C.F.R. § 825.208(e).
H. Maintenance of Employee Benefits
FMLA has specific provisions that deal with the maintenance of employee benefits. Generally speaking, the law requires the employer to maintain an employee’s group health benefit on the same conditions as coverage would have been provided had the employee been continuously employed during the leave period. Simply stated, the law requires employers to maintain health care coverage during the leave.
The law further provides that whatever benefits are provided to an employee prior to taking an FMLA-qualifying leave must be “maintained” during the period of the leave. This would include, for example, types of coverage (employee or family), as well as types of benefits, for example, medical care, surgical care, hospital care, dental care, etc.
Likewise, if a new health plan or benefits are implemented while an employee is on an FMLA-qualifying leave, then the employee is entitled to the new or changed plan or benefits upon returning from FMLA-qualifying leave. In essence, the law requires that employees not be penalized in any way with respect to benefits because of an FMLA leave. They are to be treated as other employees that were not on an FMLA-qualifying leave of absence. Another requirement of the law is that employees on FMLA leave be notified of any potential opportunities to change benefits within the health care plan even when they are on a leave of absence. Thus, if an employer offers an opportunity to change plans or benefits, these offers have to be provided to employees on an FMLA-qualifying leave of absence.
If an employee chooses not to retain group health care coverage while on an FMLA leave of absence, the employee must be reinstated to the plan with the same terms that were applicable prior to the leave of absence. Further, the law provides that employees returning from leave cannot be required to undergo any qualifying period, physical examination, etc., but, rather, simply have to be reinstated on the same terms as were available prior to taking the leave. Different provisions apply for key employees.
Although the law applies to all types of benefits, one of the focuses of the Act is that group health plan benefits must be maintained on the same basis as coverage would have been provided if the employee had been continuously employed during the period of FMLA-qualifying leave. 29 C.F.R. § 825.210.
However, if an employee pays a portion of the health care premium, the employee can be required to continue paying the employee’s share of the premium while on FMLA leave. Likewise, if premiums are raised or lowered during the leave, the employee on FMLA leave may be required to pay whatever the current premium is in effect during the leave period. Form WH-381 provides a section for an employer to inform an employee with whom to make arrangements to continue to make premium payments while on a leave of absence.
There are consequences if an employee fails to pay health plan premium payments while on an FMLA leave of absence. Generally speaking, if the premium payment is more than 30 days late, the employer may drop the coverage. However, in these circumstances the employer must provide in a letter the specific date that coverage will be dropped that is at least 15 days after the date of the letter and explain to the employee that unless the payment has been received by that date the coverage will be dropped.
It must be kept in mind, however, that even if an employee allows their coverage to lapse while on an FMLA leave, the employee must be restored to that benefit upon returning to work. Another caveat is that the law does not allow an employer to recover its share of health insurance or other non-health benefit premiums for any period of FMLA leave that is covered by paid leave as opposed to unpaid leave.
I. Employee Right to Reinstatement
One of the primary points of interest in the FMLA is that it is job protected leave. The law provides that an employee returning from an FMLA-qualifying leave of absence is entitled to be restored to the same or substantially equivalent position. Restoration of employment is a hallmark feature within the Act. Generally, the employee is entitled to be restored to the same position that the employee held when leave started or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. Certainly, within the Act an equivalent position is deemed to be one that has the same pay, benefits, and working conditions and that involves the same or substantially similar duties and responsibilities. It also appears that the position to which the employee is returned should include substantially equivalent skill, effort, responsibility, and authority.
Specifically, the law states the general rule as follows: On return from FMLA leave, an employee is entitled to be returned to the same position the employee held when leave commenced, or to an equivalent position with equivalent benefits, pay, and other terms and conditions of employment. An employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.
If return to a position requires certain conditions for an employee to be qualified, such as attending a necessary course or renewing a license, then the employee has to be given a reasonable opportunity to fulfill those conditions after returning to work.
The law specifically outlines what is intended by equivalent pay to include any unconditional pay increases that may have occurred during an FMLA leave of absence. Likewise, to satisfy the same or equivalent position obligation, the employee has to be eligible for pay premiums such as shift differentials that were available to the employee prior to the FMLA leave of absence.
The law also makes it clear that the equivalent pay includes bonuses, whether they are discretionary or not, with few exceptions. Although this was a serious point of contention before the 2009 amendments, the law now provides “if a bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold, or perfect attendance, and the employee has not met the goal due to FMLA leave, then the payment may be denied, unless otherwise paid to employees on an equivalent leave status for a reason that does not qualify as FMLA leave. For example, if an employee uses paid vacation leave for a non-FMLA qualifying purpose and would still be allowed to receive any bonus payment, then an employee on an FMLA leave of absence should receive the same payment.
The right to reinstatement is not unlimited, however. Specifically, in 29 C.F.R. § 825.216 the law provides, “[A]n employee has no greater right to reinstatement or to other benefits or conditions of employment than if the employee had been continuously employed during the FMLA leave period.” Accordingly, the law provides that if an employee is not going to be returned to work, the employer will have to prove that the employee would not otherwise have been returned to work due to, for example, a reduction in force. Another example would be if the employee’s shift was eliminated. In this situation, the employee obviously would not be entitled to return to work that shift upon being restored to work. However, when it comes to returning an employee to work, the mere fact that another employee may have filled in for the employee on leave on a particular shift will not allow the employer to preclude the returning employee from returning to the same shift. Special provisions also apply to key employees, which will be addressed in the next section of this article.
J. Key Employees
The FMLA contains special provision for “key employees”. The term is defined as a “salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite.” 29 C.F.R. § 825.217(a). The provision regarding the “among the highest paid 10 percent” of the workforce means all employees including salaried and non-salaried, eligible and ineligible, who are employed by the employer within 75 miles of the worksite. 29 C.F.R. § 825.217(c). The term salary is likewise defined and means “paid on a salary basis” as defined in 29 C.F.R. § 541.602. The referenced regulation is within the Wage Hour Law and defines employees who may qualify as exempt from minimum wage and overtime requirements of the Fair Labor Standards Act as either “executive, administrative, professional, and computer employees.”
The law provides that when an employer is determining which employees are among the highest paid 10 percent, the employer should divide year-to-date earnings by the weeks worked by the employee including weeks during which paid leave was taken. The law requires that the determination of whether an employee is a “key employee” be made at the time the employee gives notice of the need for leave. 29 C.F.R. § 825.217(c)(2). Obviously, no more than 10 percent of the employees within the 75-mile radius of the worksite can qualify as “key employees”.
The reason the status of key employee is particularly relevant under the FMLA is that there are circumstances whereby an employer is not required to return a key employee to employment at the end of their FMLA-qualifying leave. These provisions are covered in 29 C.F.R. § 825.216(b) and (c) and 29 C.F.R. § 825.218.
The law provides that 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.” The analysis is specifically stated not to be whether the absence of the employee will cause such substantial and grievous injury but, rather, whether restoration of employment will cause substantial and grievous injury. 29 C.F.R. § 825.218(a).
The law makes it clear that there is no precise test to determine the level of hardship or injury to an employer that has to be sustained. Certainly, the law makes it clear that if reinstatement of a key employee threatens the economic viability of the firm, then that would certainly constitute “substantial and grievous economic injury”. Conversely, “minor inconveniences and costs” that are experienced by the employer “in the normal course of doing business” do not constitute “substantial and grievous economic injury.” 29 C.F.R. § 825.218(c). The law also makes it clear that the FMLA’s “substantial and grievous economic injury” standard is “different from and more stringent than” the “undue hardship” test articulated within the Americans with Disabilities Act.
An employer who believes that reinstatement may be denied to a key employee must provide written notice of that fact to the employee at the time the notice of need for FMLA leave is received or when FMLA leave commences in those situations where FMLA leave begins prior to notice. Likewise, the employer has to share with the employee the potential impact of the designation, which includes not only the fact the employee may not be reinstated but also the consequences of maintenance of health benefits.
It is expected that in most circumstances there is going to be no desire that the employee would be denied restoration after FMLA leave and, therefore, the employer does not have to provide such notice. 29 C.F.R. § 825.219(a). However, if an employer does not provide such notice at the time of leave or “as soon as practical” after leave commences, the right to deny restoration is lost even if the employer might otherwise establish “substantial and grievous economic injury”. The notice an employer gives to a key employee regarding denial of restoration must also include that it cannot deny FMLA leave but that it does intend to deny restoration to employment at the completion of FMLA leave. 29 C.F.R. § 825.219(b).
If an employer is going to serve such notice, the written notice must provide the basis for the employer’s conclusion that substantial and grievous economic injury would result. If leave was already begun, the employer has to provide the employee a reasonable time in which to return to work under all the circumstances. That is, the employer would evaluate the length of leave and the urgency of the need for the employee to return to work. In those situations where the employee does not return to work in response to the employer’s notification of intent to deny restoration, the employee is still entitled to continue their FMLA leave and is also entitled to the maintenance of health care benefits during the leave. The law specifically provides that a “key employee’s” rights under the 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.” 29 C.F.R. § 825.219(c). Based on the foregoing provisions, it seems a little odd that the law would provide the key employee the right to still request reinstatement even if the employer has given notice of its intention not to reinstate the key employee. The law provides that if the key employee does request reinstatement at the end of leave that the employer must again determine whether there would be substantial and grievous economic injury from reinstatement based on the facts available at that particular point in time. If it is determined that restoration will still be denied, the employee is entitled to written notice of that fact. 29 C.F.R. § 825.219(d).