The employer could get in serious trouble, according to one recent court decision.

After an employee left for FMLA leave, the company reorganized her department to handle the workload while she was out. It turned out that the remaining employees were perfectly capable of getting everything done.

So the company decided to eliminate the woman’s position and not bring her back to work.

Wrong move, said the judge after the employee took the company to court. Companies can only deny reinstatement when employees would’ve lost their jobs even if they didn’t take leave — for example, due to a reduction-in-force that was being planned anyway.

In this case, the court found that her termination was directly related to her use of FMLA — in other words, if she never took leave, she never would’ve been let go.

Cite: Stephens v. Neighborhood Services Org.

According to the Department of Labor, a person is a “key employee” if “substantial and grievous economic injury” will result if he or she takes leave and is reinstated. Those employees must be salaried and paid in the highest 10% of all employees in the company.

When key employees request leave, the employer must notify them of their status and explain what it means at the time they ask for leave. If the company can’t tell them at that point, the employee must be notified as soon as possible, and a reasonable amount of time must be allowed for them to try to return to work.