SHRM Knowledge Advisor FMLA Chat Transcript February 14, 2013

Transcription

1 SHRM Knowledge Advisor FMLA Chat Transcript February 14, 2013 Q. Would influenza qualify under FMLA guidelines, duration of incapacitation was listed as 7 days? A. Typically the flu is not considered a serious health condition under the FMLA however if complications from the flu arise, it could be. You may need to follow your FMLA protocol to determine if the health condition meets the serious health condition definition under the FMLA. You can find the definition on the Department of Labor website or if you are a SHRM member, you could contact the Knowledge Center for more information. Q. We are considering outsourcing the LOA function. I'm looking for some reasons why we might consider AGAINST the idea. Thanks. A. While outsourcing the LOA function can ease administrative burden, employers may incur some liability if they use a provider that is unreliable as the burden of ensuring that FMLA rights are protected remain with the employer. Q. When does a company need to begin using FMLA standards? A. A company is covered by FMLA regulations once they have employed 50 employees for at least 20 weeks in the year. Q. Last week we had a heavy snow and a lot of FMLA use. In one particular case an employee told their supervisor that, 'I can't get out of my driveway... and my knee hurts, so I am going to take FMLA.' The employee had no personal time off. Is there any recourse? A. What you will want to do is follow your company guidelines relative to taking time off. Check to see if this employee is possibly on intermittent FMLA - in that case, the knee issue might qualify under FMLA but there is a process you need to go through to make that determination. Q. We have an employee who was hired as a temp part time and we transitioned her to full-time. Does the hours that the employee worked as a temp count in the qualifications of FMLA hours worked? A. Yes, time spent previously working for the organization as a temporary employee counts toward FMLA leave eligibility. Regardless of whether the employment arrangement involves a staffing firm, leasing agency or similar, or the temp is directly employed and is on an employer s payroll, this time counts toward FMLA leave eligibility. However, any breaks in service lasting seven years or longer do not count toward the 12-month eligibility requirement. Q. I have two cases on going right now, both with different circumstances. The first, my company approved an FMLA for the birth of the baby, We ok'd the dates (12 weeks) but have not received any of the employees paperwork from her or her doctor? How much responsibility falls on the employee in this case? A. The employee must be given at least 15 days to return medical certification forms for FMLA leave and longer if there are circumstances beyond their control. If the employee does not return the medical certification the employer may delay or deny the FMLA leave.

2 Q. How do you stop abuse of intermittent leave? A. There are some ways that you can stop intermittent FMLA abuse. If you are a SHRM member you can access the article at the link below. Q. An employee has an intermittent FMLA leave on file for a chronic condition. He/she must follow call-in policy, but how many days does the employee have to request FMLA coverage after the absence? A. Employees taking intermittent FMLA leave are generally required to follow an employer's call off/call in procedures, the same as any employee scheduling and taking time for doctor's appointments. Additionally, employees are expected to advise the employer which absences are taken as protected FMLA time. Q. How do you handle International travel for care of a parent? And you may not get the physician certification back. A. The FMLA process should be the same. An employee may need to travel to another country to care for a parent with a serious health condition. The employee would still be responsible for obtaining medical information from the healthcare provider, even if they are location in another country. The following is information from the Code of Federal Regulations on Medical Certification Abroad and may be useful to you. You can find more information on the Department of Labor or SHRM site. (f) Medical certification abroad. In circumstances in which the employee or a family member is visiting in another country, or a family member resides in another country, and a serious health condition develops, the employer shall accept a medical certification as well as second and third opinions from a health care provider who practices in that country. Where a certification by a foreign health care provider is in a language other than English, the employee must provide the employer with a written translation of the certification upon request. Q. I have two cases on going right now, both with different circumstances. The first, my company approved an FMLA for the birth of the baby, We ok'd the dates(12 weeks) but have not received any of the employees paperwork from her or her doctor? How much responsibility falls on the employee in this case? A. Medical certification for the birth of a child is not always necessary as the leave can be used for baby bonding rather than medical necessity. Q. What can an employer do when someone takes FMLA every Friday and Monday? A. Employers can hold employees accountable to the terms of the certification. Recertification can be required every six months; however, more frequent certifications are permissible if the circumstances of the original certification have changed. These scenarios include an increase in frequency of absences, if the employer has a reason to doubt the validity of the absence, such as a Friday/Monday absence pattern, or if the employee asks for an extension of the leave. The recertification rules are detailed in 29 CFR Along with the recertification, provide the doctor with a list of absences to ensure the absences are consistent with the medical condition.

3 Q. Hi, We have an employee who just went out on FMLA. He is supposed to return in 12 weeks. If he doesn't, we would like to consider letting him go or demoting him. Do we have to extend him more than 12 weeks? A. Under federal FMLA the requirement is only 12 weeks. Of course, there may be state laws that provide more time off, and you would also need to consider any possible Americans with Disabilities issues. Tread carefully before making that termination decision! Q. When determining if an employee meets the 1250 hours of time worked in the previous 12 months, do you count prior FMLA or PTO as "time worked"? A. Regarding calculating hours worked to determine eligibility; The FMLA follows the FLSA definition of "hours worked" when determining if an employee has worked 1,250 hours. Time not worked such as vacation, holiday, unpaid leave etc. is not included when counting hours. If you are a SHRM member, you can contact us for information on this topic. A non-shrm member can find it on the Department of Labor website. Q. Employee does not qualify for FMLA before she goes out on Leave - however, she will qualify while on Leave - can she request FMLA after her LOA starts? A. Yes, an employee can become eligible for leave while out on a LOA if they meet the 1 year/1250 hour requirement during their absence. Only leave after their FMLA eligibility date is counted toward their FMLA entitlement. FMLA is not counted as hours worked, but someone could become eligible after going out on leave. For example, an employee has a baby after only being employed for 11 months. The employee has worked 1250 hours in the previous year but won't be eligible for FMLA until 1 month after their child is born. Q. We are currently using the calendar year for eligibility calculations and are considering using the rolling year. How can we make this a smooth transition? A. When transitioning to a rolling year, an employer should ensure that any employees currently on FMLA are not affected by such a change (ensure that they remain eligible for their 12 weeks of leave) and then communicate the change to all employees via company communications and updating the employee handbook. Q. How should we handle FMLA requests for a domestic partner? A. The FMLA does not include domestic partners in the definition of a family member. The definition of spouse under FMLA is a husband or wife as defined or recognized under State law for purposes of marriage in the State where the employee resides, including common law marriage in States where it is recognized. Q. If we do not have 50 employees in the state of CA do we have to offer CA state leave? A. Family leave laws cover private employers with 50 or more employees on the payroll during each of any 20 or more calendar weeks in the current calendar year or the preceding calendar year and all public employers, regardless of the number of employees. This includes employees on the payroll who

4 received no compensation, part-time employees, commissioned employees and employees on leave who are expected to return to active employment. Employees on layoff do not count. Having said that, employers may certainly offer FMLA leave protections though not legally required to do so. Q. Do all 50 employees have to be in CA for the leave to be offered? A. The CFRA regulations apply to "companies doing business in California, with 50 or more employees. There is no requirement noted that all employees must be in California. Q. With respect to FMLA, what should an employer with 50+ EEs do to be compliant? Thank you. A. In order to be compliant with FMLA, you definitely want to have a clear and well understood policy disseminated to all employees. Also, it is imperative that the HR department personnel really understand the law well, so that you are following the letter of the law. SHRM has some great toolkits and educational offerings that will help in this regard. Q. Can we request a doctor's note for the appointments when an employee is using Intermittent leave? A. No. An employer cannot require a physician s note every time an employee misses work. According to the FMLA regulation , if an employee is on FMLA the employer can only ask for recertification every six months as long as it coincides with an FMLA related absence. There are some exceptions to this rule allowing for recertification to be requested earlier than six months. Q. If an employee is already approved for FMLA for let's say 30 days, and is now requesting an extension, what paperwork do they submit (a dr's note, a new WH-380?) and how long should we give them to submit the request? A. An employer may accept a doctor's note as an extension of FMLA leave or Certification of Health Care Provider form. The following is information on the content of recertification. You can find this information in the Electronic Code of Federal Regulations for FMLA. (e) Content. The employer may ask for the same information when obtaining recertification as that permitted for the original certification as set forth in The employee has the same obligations to participate and cooperate (including providing a complete and sufficient certification or adequate authorization to the health care provider) in the recertification process as in the initial certification process. See (d). As part of the information allowed to be obtained on recertification for leave taken because of a serious health condition, the employer may provide the health care provider with a record of the employee's absence pattern and ask the health care provider if the serious health condition and need for leave is consistent with such a pattern. Q. Intermittent FMLA for the birth of a child must be taken as a continuous block of leave. How many days would be considered a continuous block of leave? A. FMLA allows for an employer to require the use of FMLA for the birth of a child in a continuous block of leave. This would be a period of leave with no breaks for up to 12 weeks. Alternatively, the employer can allow intermittent or reduced schedule leave if they choose.

5 Q. The company I work for doesn t utilize intermittent FMLA. Could someone explain, generally, how that works? A. The FMLA allows for employees to use leave in continuous blocks of time or intermittently. An example of intermittent leave would be 1 day per week or several hours here and there as needed for doctor appointment or flare ups. The need for intermittent FMLA is determined by the employee's medical certification. Q. What resource would you suggest for staff who wants to learn more about FMLA and best practices? A. SHRM has a sample training presentation on FMLA for supervisors that could be modified and presented to staff. The Department of Labor also has a guide for employees for FMLA. Q. Can you separate an employee if they are on continuous leave and they are only partially protected with FMLA? A. It is possible. Absences that are not protected by FMLA leave can generally be counted against an employer's absenteeism policy and discipline may be taken. However, I would suggest that you take a look at possible protections under ADA if the employee is on a continuous medical leave. Q. I don't want to deny the FMLA for the employee, she had to be bed bound before delivery and I just don't think she understands the FMLA procedures. Should I call her and go over them with her? A. It is appropriate to contact an employee to clarify an employee's rights and responsibilities as it relates to FMLA. For example, clarifying that FMLA leave would also apply to leave prior to birth due to prenatal visits or complications such as bed rest. Q. Retro Leave Designation an employee has been out for 6 weeks for the same serious health condition. the Physician s paperwork only covers the last 3 weeks. Can we consider the entire leave as FMLA and deduct the first 3 weeks from their FMLA bank? A. An employer can retroactively designate leave as FMLA leave as long as there is agreement between the employer and employee. Q. I am responsible for creating a FMLA process manual. We have 10 plants in the US in 10 different states and need to create a common policy for all to follow. I know some states have their own FMLA rules that may supersede the federal. Where may I find this information for specific states? A. Relative to your FMLA process manual, SHRM has some great state law charts that should be helpful to you. We also have sample FMLA policies that will be helpful also. Q. What if an employee does not get you the certification in time or does not follow other paperwork or timeliness rules while requesting the leave? Does that mean as am employer it does not have to be granted? A. If an employee does not provide certification by the deadline, an employer may delay or deny FMLA leave. For timeliness of requesting leave, an employee should provide 30 days notice for foreseeable leave however there are circumstances where an employee may not be able to provide notice before or

6 after the leave begins. An employer may not be able to delay or deny leave due to late notice of the need for leave. An employee could potentially utilize leave under FMLA pending certification from their health care provider. If an employee never provides paperwork to certify the leave of absence, the time out is not counted as FMLA leave and the employer may treat such absences in accordance with company policies regarding attendance. Q. When an employee requests FMLA for whatever reason, does the employer need to approve it before they can use it? Or do they get to leave anyway? A. We have a great resource that deals with stopping intermittent FMLA abuse - here is the link. Q. Should we be giving every employee who asks for any type of leave, the WH-382? For instance, an employee who knows they're not FMLA eligible because they haven't been employed a year. A. A covered employer is required to provide the FMLA notices to employees who may have a covered absence. If the employee is not eligible for leave, this would be noted on the designation notice with the reason for denial of FMLA leave. Q. What does the law states regarding caring for an adult child? A. An eligible employee may be able to take leave to care for an adult child (18 years of age or older), if the child has a serious health condition, is incapable of self-care and has a disability as defined by the ADA. SHRM has a Q&A on this topic on the website. There is also information on the Department of Labor website. Q. We have an employee who has exhausted her 12 weeks of FMLA. Her manager does not want to hold her position any longer. The manager is stating holding her position will case a hardship to the department. We normally do not term employee when they have exhausted their FMLA. Even though terming the employee would is not our normal practice, do will still have the right to term the employee? A. Tread carefully! If you have already set precedent by not terminating employees when they have exhausted FMLA it may not be a good idea to start with this employee. Although employees do not normally have additional leave rights when FMLA runs out - you want to consider whether or not the employee might have a condition covered by ADA - and a reasonable accommodation could be additional time off. Q. The employee is only eligible for 12 weeks in 12 months for ALL eligible instances, or for each eligible instance? A. The employer should verify the FMLA eligibility for each new FMLA leave request. An intermittent leave would not trigger eligibility verification for each absence but the employer may verify eligibility in each 12 month period. An employee who takes leave for the birth of a child and then later takes leave for back surgery would have their eligibility verified for both incidents. Q. Does the employee have to use their earned vacation or sick time while on FMLA? A. The FMLA allows for substitution of paid leave. An employer may require an employee to use PTO,

7 vacation or sick time during FMLA leave. If an employer does not require it, an employee may request it and should be able to use the paid time off in lieu of unpaid time off. Here is some information on this topic from the electronic Code of Federal Regulations for your reference. (a) Generally, FMLA leave is unpaid leave. However, under the circumstances described in this section, FMLA permits an eligible employee to choose to substitute accrued paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave. The term substitute means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the employer's applicable paid leave policy during the period of otherwise unpaid FMLA leave. An employee's ability to substitute accrued paid leave is determined by the terms and conditions of the employer's normal leave policy. When an employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. See (c). If an employee does not comply with the additional requirements in an employer's paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave. Employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies. Q. Are transgender individuals covered by FMLA? A. The FMLA regulations cover all eligible employees, including transgender employees. As it relates to related operations, if an employee is incapacitated for a period of time, such time out could fall under FMLA protection. Q. Can an employer designate an employee's qualifying leave as FMLA if the employee refuses to complete and/or sign FMLA paperwork? Can FMLA leave of absence paperwork be submitted without an employee's signature? A. It is the employer's responsibility to designate FMLA leave when there is enough information to know the leave is FMLA qualifying. The employee does not need to approve of the FMLA designation or sign any paperwork. Q. If an employee is out for surgery and we haven't gotten the certification back from doctor, although they keep saying they will send it, when does employee FMLA actually start -- at time of surgery or when certification is received? A. If an employer provided FMLA notice to an employee within five business days of the request for leave, an employer may begin tracking FMLA on the day it commences, even if the medical certification has not been received. If, however, an employer did not provide notice to an employee, an employer may retroactively date FMLA from the day it commenced if an employee agrees. SHRM has information on the website regarding this topic.

8 Q. I'm looking for a sample spreadsheet or form that can be used to monitor any FMLA usage, especially when we have EEs that have a chronic health condition year after year. A. If you are a member, we have a sample FMLA tracking form on our site under sample spreadsheets. If not, here is a link from an internet source that may be useful - Q. So when does ADA kick in after an FMLA leave? Does the doctor help determine ADA? A. Title I of the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation to qualified applicants and employees with a disability unless the employer can demonstrate that doing so creates an undue hardship to the employer or poses a direct threat to the safety of the employee or others in the workplace. An accommodation may include a change to the work environment or to the way in which a job is usually performed. The accommodation process involves a systematic and in-depth review of the job requirements and the limitations or performance problems the employee s disability creates. The purpose of this review is to identify changes or modifications that will allow the employee to perform the essential job duties free from workplace obstacles the employee s disability previously created. SHRM's How to Guide will help you through the interactive process. Q. What does the law say about ADL (activities of daily living) for adults? I often have employees who want FMLA to care for again parents shopping/cleaning/meals, etc. A. Here is language from the FMLA regulations that cover this - Activities of daily living include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc. Q. We placed employee on FML due to WC issue - no other certification requested, EE was released MMI, now went back and has other restrictions, should we NOW ask his private doc to fill out FML certification? A. If the employee is requiring leave or absences for reasons other than those noted in the original certification, then it would be appropriate to obtain certification for the additional absences. Q. The company I work for specializes in unemployment. Often, individuals that worked for a company were let go because they could not return from a FMLA or was absent for various medical reasons. We deal with the Dept. of Labor often. When the ex-employee who was on a FMLA filed a claim and the State asks for information regarding the FMLA, is the employer allowed to provide this information to the DOL, or is this against HIPPA? A. An employer should provide information to the unemployment office in order for the state to determine eligibility for benefits. In general, HIPAA does not cover FMLA information; however, employers should follow general privacy rules and only indicate the employee was on medical leave without including specific medical information.

9 Q. Can an employee who has just given birth but returned to work immediately, have the right to request intermittent leave to take care of her new born? A. An employee may request intermittent leave however there is no requirement for an employer to provide intermittent leave following the birth of a healthy newborn child. An employer and employee may agree to allow it. An employer should ensure its policies and practices are applied uniformly. If a child has a serious health condition though, intermittent leave may need to be permitted. Q. How can we ensure that the employees understand that we are using a calendar year and must recertify each year? A. The employer's use of the calendar year should be outlined in the company's FMLA policy along with recertification requirements. Employers may also want to send out a memo each calendar year to employees using FMLA as a reminder. Q. If an employee has a follow up appointment on a surgery for march 7, but his 12 weeks expire on march 1 st, should they request an earlier appointment or just a note from a doctor? A. As it relates to additional dr. appointments after FMLA leave will exhaust - an employer should not specifically advise an employee to reschedule but could inform them that they may wish to do so; otherwise, the absence will be treated in accordance to the employer's normal attendance policies. Q. I work in a large organization and it takes us more than 5 days to process and approve/deny FMLA. Am I understanding that we have 5 days after receiving the paperwork to review and make an approval/denial decision? A. Yes, an employer has five business days to approve or deny FMLA leave. Here is information on this topic. (d) Designation notice. (1) The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee as provided in this section. When the employer has enough information to determine whether the leave is being taken for a FMLAqualifying reason ( e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances. Q. Can an employee choose to use unpaid leave when they have accrued vacation or compensatory time available? Can the employer place conditions on which time balances may be exhausted prior to allowing the employee to be on unpaid leave? A. According to the FMLA regulations permits an eligible employee to choose to substitute accrued paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave. The important thing would be to have a policy on when accrued leave may/must be taken that is communicated at the time of the leave. Q. If an employee has been off for over a week and constantly calling in sick, is it the employer's responsibility to initiate the FMLA request? A. When the employer acquires knowledge that an employee's leave may be for an FMLA-qualifying reason, the employer must notify the employee of the employee's eligibility to take FMLA leave within

10 five business days, absent extenuating circumstances. See for definition of an eligible employee. The key here is that the employee's leave may be covered and this would trigger the employer's notice requirement. Q. What if the stay-at-home spouse of an employee is "out of commission" from running their household. But, that spouse is able to care for themselves. So the care of the children is the real problem. Does that qualify for FMLA? A. FMLA can be used to bond with a newborn or to care for a family member with a serious health condition. Child care wouldn't generally be covered; however, the employee could use their intermittent FMLA for the birth of the third child to care for all of the children during the newborn's first year. Q. Laurie - If the employee is on unpaid FMLA and a holiday falls within the time period, do we pay the employee holiday pay? A. Section (h) of the regulations states: An employee s entitlement to benefits other than group health benefits during a period of FMLA leave (e.g., holiday pay) is to be determined by the employer s established policy for providing such benefits when the employee is on other forms of leave (paid or unpaid, as appropriate). Q. Sherry - Can an employee who takes 12 weeks of FMLA/CFRA use FMLA within the same year for Worker's Comp? Shouldn't the leave of absence just be covered solely under worker's comp? A. Workers' compensation provides financial benefits when an employee is out of work due to a workrelated injury. It does not provide leave benefits, therefore an employee with an on-the-job injury may be eligible to take FMLA leave, CFRA leave or both. The workers' compensation benefits typically run concurrently with the leave. Q. What is the smallest increment of time that FMLA can be used? A. FMLA leave may be taken in periods of whole weeks, single days, hours, and in some cases even less than an hour. The employer must allow employees to use FMLA leave in the smallest increment of time the employer allows for the use of other forms of leave, as long as it is no more than one hour. If an employer uses different increments for different types of leave (for example, accounting for sick leave in 15 minute increments and vacation leave in one day increments), the employer must allow FMLA leave to be used in the smallest increment used for any other type of leave. Similarly, if an employer allows for use of leave in different increments during specific times of the day (for example, requiring a one hour increment of leave at the start of the shift and using 15 minutes increments for leave at other times), the employer may use the same increment for FMLA leave at those specific times of the day. An employer may always allow FMLA leave in shorter increments than used for other forms of leave but no work may be performed during any period of time counted as FMLA leave. Q. Are you activities of daily living for parents covered under FMLA? A. Employees are not specifically eligible to take leave for aged parents just for activities of daily living. An eligible employee may take leave for aging parent if the parent has a serious health condition as defined under FMLA - (a) For purposes of FMLA, serious health condition entitling an employee to

11 FMLA leave means an illness, injury, impairment or physical or mental condition that involves inpatient care as defined in or continuing treatment by a health care provider as defined in Q. Are we required to count FML retroactive to the submission of the completed certification? A. An employer can and should designate FMLA retroactively upon agreement between the employer and employee. Q. Can we accept medical certification from a doctor outside the US for their own serious health condition? A. An employer may accept certification from outside the U.S. Here is information on this topic. (f) Medical certification abroad. In circumstances in which the employee or a family member is visiting in another country, or a family member resides in another country, and a serious health condition develops, the employer shall accept a medical certification as well as second and third opinions from a health care provider who practices in that country. Where a certification by a foreign health care provider is in a language other than English, the employee must provide the employer with a written translation of the certification upon request. Q. When we have staff on FMLA we ask them to use their personal vacation and sick time but a few staff members want to keep sometime in their bank for any situation in the future, can we allow them to keep sometime and how much time? A. FMLA permits an employer to require an employee to use accrued leave, but does not require an employer to do so. Employers may choose to require the use of all or none of the accrued time. The amount that the employee may retain will be a matter of company policy. Q. We do not guarantee overtime, however if an employee has overtime on a consistent basis, is the employee eligible for more than 480 hours - based on the overtime. If so what is the look back period for the OT hours average? A. According to the FMLA regulation If an employee would normally be required to work overtime, but is unable to do so because of a FMLA-qualifying reason that limits the employee's ability to work overtime, the hours which the employee would have been required to work may be counted against the employee's FMLA entitlement. In such a case, the employee is using intermittent or reduced schedule leave. For example, if an employee would normally be required to work for 48 hours in a particular week, but due to a serious health condition the employee is unable to work more than 40 hours that week, the employee would utilize eight hours of FMLA-protected leave out of the 48-hour workweek ( 8 48 = 1 6 workweek). Voluntary over me hours that an employee does not work due to a serious health condition may not be counted against the employee's FMLA leave entitlement. Q. If the employee has already used up their 12 weeks of FMLA when they used FMLA/CFRA are they still entitled to use FMLA for worker's comp in the same 12 month period? A. If an employee has exhausted their FMLA/CFRA leave, an employer may need to determine if they are eligible for any other type of job-protected leave under state law, the company's policies or practices, leave as an accommodation under the ADA, an employment contract or collective bargaining

12 agreement. If you are a SHRM member, you may want to contact the Knowledge Center to obtain additional information. Q. If an employee is permitted two occurrences in a month, but uses them back to back, is that permissible? A. Not sure what you mean by occurrences or how that would relate to FMLA - but basically, if an employee has been granted FMLA, then they are entitled to take it - you cannot penalize them for taking it. Thanks for joining us today! Over 1000 HR professionals participated in the chat. For SHRM members, our Knowledge Center Advisors are available to provide additional answers and resources. We also have a whole FMLA Q&A section on the SHRM website under templates and tools/ FAQ/Benefits/Family Leave along with how-to guides, sample policies and much more. For non-shrm members, we invite you to join SHRM today USE CODE: CHATFM for a $15 first-time member discount!