It may come as a surprise, but Stephen Colbert is human, and like the rest of us, has a mother. He has taken a leave of absence from his show to apparently spend time with his ailing mother. An article I read recently notes how Colbert’s leave could trigger family medical leave. I thought the article does fine explaining family and medical leave, but given Colbert’s importance to The Colbert Report, it is also a good reminder about a narrow exemption to an employee’s reinstatement rights if they are a “key employee.”

Basic Medical Leave Rights

The Family Medical Leave Act (FMLA), and the California Family Rights Act (CFRA) both provide employees the opportunity to take up to 12 weeks of unpaid leave for certain “qualified” events. Employers with 50 or more employees (part-time employees are counted to make this determination) are covered by the FMLA and CFRA. Employees who have worked for at least 12 months and at least 1,250 hours in the immediately preceding 12 months are covered by the laws. However, employers do not need to provide the leave if the employee works at a location with fewer than 50 employees within a 75-mile radius.

“Key Employee” Exception

If the employee is covered by the FMLA or CFRA the employee is entitled to return to his or her former position, or a position that is equivalent to the previous position held with equivalent benefits, pay, and conditions of employment. The small exception to this is for “key employees.” A key employee is defined as a salaried employee who is the highest paid 10% of employees within a 75-mile radius. If the key employee’s reinstatement would cause “substantial and grievous economic injury” to the employer, then the key employee may be denied reinstatement. However, when the employee takes the leave of absence, the employer must provide notice to the employee that he or she is a “key employee” and explain their reinstatement rights. If the employer fails to do so at the time the employee goes on the leave of absence, it loses the ability to deny reinstatement to the employee under the “key employee” exception.

No need to worry about Colbert though. It is being reported that Colbert will be returning to our televisions tonight.