Key employee exception/intermittent leave

I have researched this question a bit and asked a number of people about it, but no one seems to have an opinion on it. My question is whether it is possible for an employer to invoke the key employee exception when an employee requests intermittent FMLA leave. The regulatory sections that discuss key employees seem to envision only employees who have requested a large block of leave. Maybe that is the answer right there. But it does seem to me that for certain types of key employees, the use of ongoing intermittent leave could become a real problem. Has anyone ever experienced such a situation? If so, what did you do about it?

Julie Athey
Author - FMLA Compliance: Practical Solutions for HR and
HR Q&A: Family and Medical Leave Act


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  • I've not experienced this specific issue, but my basic line of devil's advocate reasoning usually leads me to ask the manager these questions: Do you make it through the day when Mr. Smith goes to lunch? When he is away at meetings or conferences? When he is on vacation? Why does intermittent FML create a significantly greater burden than those events that you deal with on a regular basis?

    Most objections to FMLA are rooted in resentment. Now, resentment can be a valid response in a lot of circumstances. But it's generally not the best foundation to build a policy on.
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