The Essential Guide to Family & Medical Leave

chapter 10 | reinstatement | 235
Notice of Determination of Substantial and Grievous Economic Injury
In addition to the above requirements, you can deny reinstatement to an
employee only if reinstatement would cause your company substantial and
grievous economic injury. And you must provide another written notice to
the employee if you determine that such injury will result from reinstatement.
The FMLA and its regulations don’t provide much guidance on what
constitutes a substantial and grievous economic injury—and, perhaps
because few employers rely on this exception to deny reinstatement, there
have been very few court cases on the issue. A few things are clear:
• The injury must stem from reinstatement, not from the employee’s
absence.
• You don’t have to show that the whole company will go under.
• You must show more than minor inconvenience or “undue hardship,” as
defined by the Americans with Disabilities Act.
Once you determine that substantial and grievous injury will result from
reinstating the employee, you must tell the employee in writing. This second
notice must include all of the following:
• a determination that reinstating the employee will cause substantial and
grievous economic injury to the company
• the reasons for that determination
• a statement that the company may not deny FMLA leave to the employee
• a statement that the company intends to deny reinstatement to the
employee once his or her FMLA leave is finished, and
• if the employee is already on leave, a deadline for the employee to return
to work to avoid being denied reinstatement. You must give the employee
a reasonable amount of time to return, considering the circumstances.
If you have already determined, when you give the employee his or her
initial notice, that reinstating the employee will cause substantial and grievous
economic injury, you can use that notice form to provide this information.