The Family and Medical Leave Act (FMLA) is one of the top topics SHRM gets member questions about in our HR Knowledge Center. So, host Monique Akanbi sits down with Liz Petersen and Sheri Martel, two FMLA experts within SHRM’s own ranks, to tackle the questions HR pros ask the most. Together, they break down key FMLA areas such as eligibility, intermittent leave, compliance, job restoration, and special circumstances. Whether it's calculating requirements, managing leave patterns that suggest misuse, handling benefit coverage obligations, or navigating tricky return-to-work cases, their conversation delivers practical insights for approaching FMLA with confidence. This podcast is approved for .5 PDCs toward SHRM-CP and SHRM-SCP recertification. Listen to the complete episode to get your activity ID at the end. ID expires July 1, 2026. Subscribe to HR Daily to get the latest episodes, expert insights, and additional resources delivered straight to your inbox: https://shrm.co/voegyz --- Explore SHRM’s all-new flagships. Content curated by experts. Created for you weekly. Each content journey features engaging podcasts, video, articles, and groundbreaking newsletters tailored to meet your unique needs in your organization and career. Learn More: https://shrm.co/coy63r
The Family and Medical Leave Act (FMLA) is one of the top topics SHRM gets member questions about in our HR Knowledge Center. So, host Monique Akanbi sits down with Liz Petersen and Sheri Martel, two FMLA experts within SHRM’s own ranks, to tackle the questions HR pros ask the most. Together, they break down key FMLA areas such as eligibility, intermittent leave, compliance, job restoration, and special circumstances.
Whether it's calculating requirements, managing leave patterns that suggest misuse, handling benefit coverage obligations, or navigating tricky return-to-work cases, their conversation delivers practical insights for approaching FMLA with confidence.
This podcast is approved for .5 PDCs toward SHRM-CP and SHRM-SCP recertification. Listen to the complete episode to get your activity ID at the end. ID expires July 1, 2026.
Subscribe to HR Daily to get the latest episodes, expert insights, and additional resources delivered straight to your inbox: https://shrm.co/voegyz
---
Explore SHRM’s all-new flagships. Content curated by experts. Created for you weekly. Each content journey features engaging podcasts, video, articles, and groundbreaking newsletters tailored to meet your unique needs in your organization and career. Learn More: https://shrm.co/coy63r
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[00:00:35] Monique Akanbi: Hello and welcome to Honest HR. I'm your host, Monique Akanbi. Did you know that the Family Medical Leave Act is one of the top three topics we get questions about in our knowledge center? Also, according to SHRM's research, 89% of employers agree that there should be more education and training for both employers and employers.
Regarding FMLA, rights and responsibilities. So today as one way of helping provide more education and training, we'll be answering some of our members' most common questions around FMLA right here on Honest HR. Joining us today are two resident FMLA, experts here at SHRM. Liz Peterson, manager of Knowledge Operations, and Sherry Martel, lead of Total Rewards.
Welcome to Honest HR, Liz and Sherry. Thank you so much. Thank you. Alrighty. So before we get to our members' questions, I have a couple of context setting questions both for you, Liz and Sherry. So Liz, how would you describe the value our Knowledge Center offers to our members?
[00:01:50] Liz Petersen: Monique's a great question.
Our Knowledge Center at Member allows us to provide personalized guidance to our members on their most complex HR challenges provides, a way for us to be to.
Or, resource. It helps navigate, helps navigate.
[00:02:28] Monique Akanbi: Awesome. Well, Liz, I have to tell you, I have the opportunity of visiting a lot of our affiliate conferences or speaking at conferences and, speaking about the benefits of being a member of Sherman, every time I highlight our knowledge center and our knowledge advisors, if I had a dollar for every time someone came up to me afterwards and.
Said they didn't realize that that was a benefit available to them as a she R member. I could probably retire. So thank you for sharing that. Now, Sherry, why would you say FMLA is such a critical topic for HR professionals to stay on top of? That's a great question.
[00:03:07] Sheri Martel: Every HR professional should be up to date on FMLA.
Its rules, its requirements. It's such a big part of compliance when it comes to being an HR professional and it's getting more complex every day. And not only do we have many people working remote, which means. Employees located across states. There are now numerous states that have their own paid family and medical leave laws, and it's important that companies and HR professionals understand what states have those laws and what they entail and how they work in conjunction with or separate from FMLA.
So there's always something new to learn. it's always evolving and it's important that HR professionals take the time to really learn and relearn what's going on in the world of FMLA.
[00:03:54] Monique Akanbi: Thank you so much for sharing that. Sherry, I will tell you, I often say I have the unique opportunity to still be involved in HR in my role with SHRM, but not have to practice day-to-day HR.
So you just talking about FMLA and managing the compliance and the various lead laws of either state law and then, you have FMLA. I do not miss it at all, but I echo your comments around it being critical to. For HR professionals to really stay on top of it and to understand how your state law works with FMLA, which is the, federal, leave Act.
Medical Leave Act. So, Liz, I'd love for you to share with our audience how you narrowed down your questions around FMLA or the questions that you all receive at the knowledge center around FMLA.
[00:04:47] Liz Petersen: So once we've found out that we're gonna do this, Honest HR podcast, I looked at the all the FMLA questions that we've gotten in the knowledge center the last month, and I, of course used ai, because that's the most efficient way for me to do it.
So I asked AI to look at all those questions, which is a ton. and help us determine what are the top five themes. It ended up that we found out that we had eligibility and coverage was being number one. Number two was intermittent lead management. Three was employer obligations and compliance. Four was job restoration and performance issues, and five was special circumstances and complex scenarios.
And then I asked, One of.
[00:05:43] Monique Akanbi: You used artificial intelligence and we have a phrase at SHRM AI plus hi, which is your lovely human ingenuity, equals ROI. So I love that you utilize AI to identify or to kinda maybe pull those, trends or themes around some of the common questions that we receive in our knowledge center around FMLA.
So. Let's get to our questions. You mentioned, Liz, that the first theme was around eligibility and coverage of for FMLA, Sherry, if you can tell us, how do we calculate employee eligibility for FMLA? If there are close to meeting that hour requirement, but fall short, maybe a few hours or days.
[00:06:30] Sheri Martel: Definitely, it's so important that we're always calculating those hours to make sure that employees have met that annual requirement that they need.
If someone's falling short or you know, close to those hours, it's important that you double check your payroll records, ensure that all time work has been accounted for. Make sure that you're including over time. On any compensable hours for travel or training. So make sure your hours are completely accurate.
also check for the proximity, of the eligibility. It's possible that the employee is just one or two days or a few hours shy. Example, if they work a 40 hour work week normally, and they're 10 hours short, they will meet that requirement in just two to three working days. So be sure that you look at when they're asking for that leave versus what start date they're actually looking to take it.
they might qualify by then. It's also possible to depend on the circumstance. That employee might be able to postpone that FMLA leave by a week or two if it's, say, a planned surgery or something like that. It's really important to have that open and honest communication with employees all the time about what qualifies as hours and, where they stand in those hours.
So they aren't called off guard when they're looking to use FMLA leave.
[00:07:45] Monique Akanbi: I love that you, you mentioned checking your payroll records because I think oftentimes we just automatically assume, right, they work a 40 hour work week, that they worked those 40 hours. but making sure you go back and check your records to ensure that they met those requirements.
So thanks for calling that out, Sherry. Now Liz, there is a requirement, for employers to offer, FMLA, as long as they have. Employees within a certain mile radius. Right. so does an employer with multiple locations need to count employees across all sites to meet that 50 employee threshold within the 75 mile radius.
[00:08:28] Liz Petersen: Now this question's a little complicated because it overlaps two different things. One is, employer coverage, and then the other is employee eligibility. So the first, the top for those employers that are small, close to 50 employees, and just make sure that they understand that, it's 50 employees within 20 work.
And, for 20 work weeks in the current year or in the preceding calendar year. and if that happens, then you are an FMLA covered employer, and you do need to have that poster drop, even if nobody in your organization is eligible for FMLA. And let's talk about that multiple location. Which you wanna do is a 75 mile radius.
So you wanna look at each person to request FMLA and whatever location they report into, that's where you start that 75 mile radius for what other locations or employees may be in that radius. Keep in mind that remote workers do apply to the, or do count towards whatever location they report into or that directs their work.
[00:09:46] Monique Akanbi: So follow up question to that, if I am an employer and I have, let's say 80 employees that work at our home office, we're based in a specific city. I'll just throw a city out there, Charlotte. however I have. I have maybe about 12 employees that works at a client location, let's say in Miami. Would those employees be eligible for FMLA?
And this is both either Sherry or Liz. You can answer that. Yeah, I
[00:10:20] Liz Petersen: could follow up on that one. So, the, employees headquarters, yes. There's 50 employees within a.
If there's not 50 employees within a 75 mile radius or other remote employees that report in to that location, they're probably not gonna be eligible for fmla. You would wanna check any state law, or if they might be eligible for a DA.
[00:10:45] Sheri Martel: Sherry, did I miss anything there? No, that is spot on. I was thinking the same thing.
It's a very tricky situation and you have to be aware of exactly how many employees you have in those locations.
[00:10:57] Monique Akanbi: Awesome. Thank you. So Sherry, contemporary employees or part-time workers qualify for FMLA and do their hours count towards their eligibility if they're eligible?
[00:11:08] Sheri Martel: Absolutely. if a part-time employee meets the same criteria, eligibility criteria is a full-time employees, meaning they can make that 1,250 hours in that year, then they can use those hours towards, FMLA eligibility.
So. it's for everybody as long as they can meet that eligibility criteria.
[00:11:28] Liz Petersen: Okay. Yeah. And I wanna just clarify that that's whether they're, through a staffing re agency, doesn't matter whether they're on the company's payroll, direct hire, or a staffing agency, the hours still count. It's just a matter of, it's a employment situation.
So they would count towards, if.
[00:11:53] Monique Akanbi: Got it.
[00:11:54] Liz Petersen: Okay.
[00:11:55] Monique Akanbi: Well, if we thought eligibility was complex, my next area is going to be even more complex and it actually, brings back memories, which is the second theme of intermittent lead management. Ugh. Right. That's the emotion. That's the emotion that evokes when I hear that. So, Liz, can we require employees on intermittent FMLA to provide doctor's note for each, a doctor's note for each absence or follow specific call-in procedures?
[00:12:25] Liz Petersen: So call procedures? Yes. if it's unforeseeable time and they need to take time off, on the day of, then they need to follow normal call procedures. you, can certainly let them know, what those are, as part of your normal process when it comes to doctor's notes. You have to be careful and when you ask for those, certainly you can ask for the medical certification upon initial request of fmla.
and then it depends on whether that leave absence is for a longer period of time or a shorter period of time. generally, if the health condition will last more than 30 days, you.
Re, I should note considered recertification. you ask for documentation
all six months.
Exceptions
circumstances. So, such as the duration or frequency of the absence has changed. And then if you received any information that cast doubt on the legitimacy of the FMLA request. So, for example, if the employee regularly misses Monday mornings and Friday afternoons, but really miss time in the middle of, is there a.
[00:14:17] Monique Akanbi: Speaking of, leave patterns, right? There's always, potential misuse. So Sherry, how do we handle situations where there's intermittent leave patterns, for example, an absence every Monday and Tuesday? how do, if that suggests maybe potential misuse or how would we, how should we handle or our audience handle those situations?
[00:14:42] Sheri Martel: Of course the first thing you wanna do I is make sure that you are documenting all leaves. So intermittent leave, should be documented so you know when it's being taken and you're able to identify those patterns. After that, you definitely wanna go and double check that initial doctor's certification.
is the leave. Consistent with what the doctor approved. if not, then that can raise the red flag. And that can go back to what Liz was saying, where at that time if it's significantly different than what was initially approved, you can then ask the employee to get re recertification to verify that those dates, and the leave patterns, Are correct and that the leave has actually changed. you can be honest with your employee and have those conversations and say, I've noticed this is, you know, a lot more frequently than what your initial leave request was for. I, you know, I would like you to go ahead and get an updated certificate of leave from your doctor, so we can have this new, schedule on file.
[00:15:40] Monique Akanbi: Liz can an employer request a predictable schedule from employees using intermittent FMLA to minimize disruptions. Answer is,
[00:15:50] Liz Petersen: it depends on whether it's foreseeable or unforeseeable types of, bleed. So foreseeable might be scheduled treatment, regular, appointments that you have with the doctor to, to seek treatment if it's unforeseeable.
Epi, maybe they have migraines and they get a migraine periodically, but can't say
end of.
So, that's not something that we can do. So you can't really, require that type of a schedule for the unforeseeable, but for the foreseeable you can certainly request it and them to try to get those appointments as best they can and they'll leave disruptive time period.
[00:16:40] Monique Akanbi: Now that brings us to our third theme, which is Employer Obligations and Compliance.
So Sherry, are employers required to continue health insurance benefits for employees on unpaid FMLA leave and what happens if those premiums are unpaid?
[00:16:59] Sheri Martel: Absolutely. Employers must com continue to pay for the employee's insurance premiums while they're on leave. The employee, however, is still obligated to pay their portion, so they still need to make those payments.
If the payment is left unmade, you can cancel their insurance. I recommend giving a little bit of a grace period for an employee, maybe a 30 day grace period, so they have a little bit of time knowing that they are on leave and, possibly not being paid to make up those payments. But you can, if no payment is made, cancel their insurance.
But keep in mind that you must give that employee 15 days written notice of the intent to cancel their insurance before doing so.
[00:17:41] Monique Akanbi: that's very important. Making sure that you give them that notice, that 15 day notice, but then also giving that grace period, right? Because if they're requesting FMLA, it is our hope that they, it is a true medical, event that they're dealing with and they need those benefits.
Liz, if an employee fails to return their FMLA paperwork within those 15 days, can, can we deny their leave or apply attendance policies?
[00:18:08] Liz Petersen: So, yes. generally an employer can deny or delay FMLA leave. if an employee does not return their certification within 15 days, as long as the certification form was informative enough to let them know of the consequences of not returning it.
Thatm, DOL form does that language so.
You provide all that information to the employee as part of the complete sufficient certification. but an employer can deny or delay it. There is an exception, which is if it's not practical for them to get that certification back to you. So if there's some extenuating circumstances, an employer should consider those.
For example,
I all the paperwork
my Outta country for three weeks and they're ing next week. So I haven't been able to even get in to see them. I wish they had contacted me sooner to gimme that notice, but, but it was an extenuating circumstance. I didn't feel like it was practical for them to go find a whole doctor, to talk them, to get the.
It would definitely work a situation where I wanted to just delay the requirement to paperwork.
so that was one of those extenuating circumstances. But if there isn't an extenuation circumstance, the employee's just not returning it and they're not following up with you, to let you know what's happening, then you can delay or, deny the leave and it would fall to their company policy. So, if their company policy is that, they can only have so many absences, or they've their sick, whatever the case.
[00:20:26] Monique Akanbi: So it sounds like communication is key, especially, when going through that process. Sherry, can an employer retroactively designate FMLA if the employee has already been out for several weeks? You can,
[00:20:40] Sheri Martel: depending on the situation. I think this comes up often with FMLA because a lot of times people.
Go on leave for an illness or an injury and they're out for one or two weeks and you may not find out about it, or realize that they're out for an FMLA qualifying condition at that until they've already been out for a week or two. And if that is the case and the reason they're out does meet the FMLA qualifications, you can retroactively, Designate that is FMLA leave. You just wanna make sure that whatever you do is not at detriment to the employee's rights. So as long as it's favorable to them and they're on agreement with it, you can do that. I just, again, documentation and having that open, communication with that employee so they understand what's happening is, so important.
So there's no confusion.
[00:21:25] Monique Akanbi: So our fourth theme, which is job restoration and performance issues. Liz, can we move an employee returning from FMLA to a different position if their original role has been eliminated or perhaps filled?
[00:21:41] Liz Petersen: So, it depends on whether the different position is an equivalent position.
if that's the case, it would've to be equivalent pay benefits, working conditions, all the things. location, all those things would have to be considered equivalent to the employee or more beneficial, in those.
If a position is eliminated, an employee has no greater right to continued employment than if they were not on fmla. So, so if that job elimination would have let this person go, had they not taken FMLA, or had. Would've said, we don't have your position, but here's another position. Then an employer would need to provide that same type of, option to this employee.
make sure that there's good documentation approved, that this decision was not made based upon that of a, but it was a business decision and there was a selection criteria utilized. so documenting all that very important. when it comes to another role being filled, generally an employer would have to displace the person that came in and filled the role for the individual who's on fmla, unless again, there's an equivalent position available.
So, generally when somebody's off on FMLA, an employer, Fill position, but they shouldn't necessarily assume that position filled and they would displace the person, fmla The person. FMLA has the right direct job restoration to come back to their current position and that person that filled that position temporarily may the one that has to move to the position added.
[00:23:36] Monique Akanbi: So this is where it gets tricky. And I am gonna ask you this, Sherry. So. How do we handle poor performance issues for employees who may have not been performing satisfactorily before taking FMLA, and then they return? How do we handle that?
[00:23:55] Sheri Martel: This always seems to be a, tricky situation, and I think the very first thing to always ask is, was the poor performance documented prior to the person going on FMLA leave?
being on leave is job protection for FMLA? However, it does. Reset any performance issues that were already going on prior to leave. So if an employee was already on a performance improvement plan or had some sort of action, it can pick right back up when that employee returns. If there was documentation, you were supposed to have a meeting about disciplinary action and then someone went on leave, and you didn't have a chance to have that, you can still have that when they return, it doesn't reset or start over.
That being said, it's. Anything that is disciplinary action or pro performance needs to be related to prior leave. You can't suddenly bring it up, oh, before you left, you weren't doing X, Y, and Z, and now let's talk about it. Now that you've returned it, that can be construed as you know, retaliation for FMLA or anything like that, that you don't want to happen.
You wanna make sure that you are referring to something that happened prior to leave and that it was previously documented and discussed.
[00:25:06] Monique Akanbi: Yes, so the key to that, which every HR professional should know, or maybe say it in their sleep, which is document, document, document,
[00:25:15] Sheri Martel: right? Definitely document, document, document.
[00:25:19] Monique Akanbi: Making sure we have proper documentation and addressing those performance issues as right as they occur and not waiting. So Liz, if an employee returns to work from FMLA, but they're unable to perform the essential functions of their job, or maybe they need an extension beyond the 12 week limit that FMLA provides, how should an employer handle that?
Should they pursue termination? Should they pursue other alternatives?
[00:25:50] Liz Petersen: So it on the employee situation, if their own serious health, an employer would need check.
Also state laws might be applicable. So just looking at, what other leave benefits this employee still may be eligible to receive. also in addition, any company policy. So if there's a policy allowing for additional personal leave that employee could take, or, or another medical leave benefit that the company offers for, employees beyond fmla, those things might be eligible for the employee.
Okay.
[00:26:33] Monique Akanbi: So that takes us to our last theme, which is special circumstances and complex scenarios. now we have six generations in the workplace today, right? and we hear a lot about the sandwich generation, where your either parent carry birth kids and parents, or even oftentimes caring for grandchildren as well.
So, Sherry, can FMLA be used? To care for grand for a grandchild under the local parentis provision? If the employee is the primary caregiver?
[00:27:05] Sheri Martel: Yes. The short answer is yes. If they are the acting as the responsible caregiver for the child, then they absolutely can use FMLA leave. The employer can ask for some sort of documentation, but don't get too in depth, and make sure you're consistent across the board for anyone that you might ask this kind of documentation for.
But yes, they, can. Okay,
[00:27:28] Monique Akanbi: awesome. Well that clears that up. And so Liz, how do we handle overlapping FMLA, and other types of leave? So maybe short term disability or even workers' compensation.
[00:27:41] Liz Petersen: Workers' compensation are paid benefits. They're not necessarily approving
fm. So they often run at the same time. short term disability is the pay part of the FMLA leave as well as if it's workers' comp. FMLA would apply to workers' comp situations, so don't forget that piece. of your workers' comp leave, is to make sure they get their certification for FMLA and follow.
[00:28:17] Monique Akanbi: Now this is a, this next question is tricky. I've never encountered this. Thank God I didn't, Sherry, if an employee resigns, but requests FMLA for a past aid, and I guess this has occurred before we've gotten these questions in our knowledge center, right. Are we obligated to grant their
[00:28:36] Sheri Martel: leave request?
Well, I'm happy to say in all my years of doing this, I've never gotten this exact question myself. however, because it is a little tricky, however, There's different scenarios as to why you may or may not have to. So if the, FMLA request is valid, then you may still be required to approve this retroactively.
for example, if an employee resigns on October 1st and submits the certification on the fifth, showing that they were hospitalized from September 15th, the 30th, they're still employed. They've already resigned. They were employed during that time period that they were at. You may need to designate that time as FMLA leave.
Does that make sense at all? I hope that clears it up a little bit. That
[00:29:20] Monique Akanbi: it does, that does. But I hope none of us ever encountered those situations. again, well. We could sit here. I know I can, and talk about FMLA and all of the special circumstances, for hours and hours. But that wraps it up for this week's episode of Honest HR Sherry and Liz, thank you so much for sharing your deep insights with us.
Honest HR is part of SHRM's HR daily flagship content series. I encourage you to head to SHRM dot org. Slash HR Daily to learn more and sign up for our newsletters. You can also catch us on SHRM's social media. Be sure to like, comment and be a part of the conversation. Thanks for joining, and we'll see you next time.
[00:30:17] AD: Hiring is evolving. Is your business. Explore the demand for skilled talent Report from Robert Half to see how AI is shaping the future of hiring. Visit robert half.com/demand for skilled talent.
[00:30:36] PDC Message: This podcast is approved for 0.5 professional development credits, AKA PDCs toward SHRM-CP and SHRM-SCP recertification. Enter the following PDC activity ID in your SHRM activity portal to log your credit, two six dash MYF three J. That's 26 dash NY F three J. This ID expires on July 1st, 2026.