Short answer: Designate the absence as FMLA leave because the employee's stated migraine matches an existing certified intermittent leave condition; the employer's duty follows the facts, not the words used.
SHRM-CP Walkthrough: FMLA Intermittent Leave When the Employee Never Says FMLA
This question tests a classic compliance trap: treating protected leave as unexcused because the employee did not use the right legal phrase. SHRM-CP candidates need to recognize when the employer already has enough information to act.
By Michael D. Penn, SPHR SHRM-SCP · June 25, 2026
Author Expertise
Written and reviewed by Michael D. Penn, SHRM-SCP, SPHR, founder of CriticalThink HR. Michael earned all five major HR certifications in under two years and built CriticalThink HR from direct exam-prep, candidate-support, enterprise systems, and AI product work.
Short Answer
The most defensible HR action is to designate the absence as FMLA leave based on the existing certification and the employee's stated migraine, then notify the employee in writing. The employee does not have to use the word FMLA if the facts already connect the absence to a protected, certified reason.
Exhausted PTO may make the absence unpaid, but it does not erase the FMLA designation duty. Recording the absence as unexcused, demanding a new certification for a routine intermittent absence, or refusing to count the time against FMLA entitlement all create avoidable compliance risk.
- Audience
- SHRM-CP candidates and HR generalists responsible for leave administration, call-in procedures, attendance tracking, and FMLA compliance.
- Outcome
- A practical rule for intermittent leave call-ins: when the stated reason matches a certified FMLA condition, HR should designate and document rather than wait for magic words.
Key Takeaways
This is an operational employment-law question, but the risk is bigger than attendance coding. The wrong answer can turn a protected absence into an interference claim.
- FMLA protection depends on sufficient information, not on the employee using the acronym FMLA.
- Once the absence matches an existing intermittent certification, HR should designate, track, and notify.
- Exhausted PTO affects pay status, not whether qualifying time must be counted as FMLA leave.
The Scenario
The Options
An employee with a certified FMLA intermittent leave condition for migraines has exhausted their paid time off. They call in stating they have a migraine and cannot work their shift today, but they do not explicitly mention FMLA. What is the HR Generalist's most appropriate next step to ensure compliance?
A. Designate the absence as FMLA leave - Defensible answer
Designate the absence as FMLA leave based on the information provided and existing certification, and notify the employee in writing.
B. Record the absence as unexcused
Record the absence as an unexcused absence since the employee did not specifically request FMLA leave.
C. Require a new medical certification
Require the employee to submit a new medical certification for this specific absence before approving it as FMLA leave.
D. Treat it as unpaid but not FMLA
Tell the employee that because their PTO is exhausted, the absence will be unpaid but will not be counted against their FMLA entitlement.
The Defensible Answer
The most defensible action is Option A: designate the absence as FMLA leave because the stated reason matches the employee's existing certified intermittent FMLA condition, so the employer has enough information to designate and notify.
CriticalThink HR™ is not affiliated with or endorsed by SHRM. SHRM is a registered trademark of the Society for Human Resource Management. This article is educational and is not legal advice.
What this question is really testing
This is not mainly a PTO question. It is an employer-notice and designation question. The employee has already been certified for intermittent FMLA leave for migraines, and the new absence is tied to that same reason.
The SHRM-CP move is to separate operational clutter from the compliance trigger. The clutter is that PTO is exhausted and the employee did not say the acronym. The trigger is that the absence matches the certified protected condition.
Why Option A wins
Option A is the only answer that satisfies the employer duty to recognize, designate, track, and notify. It protects the employee from improper discipline and protects the organization by counting the time against the correct entitlement.
The facts are sufficient
The call-in gives the employer a reason that matches the certified migraine condition. HR does not need magic words to connect the absence to FMLA.
The designation must be documented
The employer should notify the employee in writing and count the leave against the FMLA entitlement when the leave qualifies.
Paid leave and protected leave are separate
The absence may be unpaid because PTO is exhausted, but that does not make it non-FMLA.
What Department of Labor guidance says
The U.S. Department of Labor explains that employees do not have to specifically ask for FMLA leave, but they do need to give enough information for the employer to know the leave may be covered. See the DOL's employee notice fact sheet and employer notification fact sheet.
For repeat leave tied to an already approved FMLA reason, the practical HR question is whether the employee referenced the qualifying reason or enough facts to connect the absence to that reason. Here, the employee specifically says migraine, and migraine is the certified intermittent condition.
Why the tempting answers fail
Marking the absence unexcused
This treats terminology as more important than the known protected reason. It creates immediate FMLA interference and discipline risk.
Demanding a new certification
A routine intermittent absence that matches the certification does not justify forcing the employee through a new certification cycle for that specific shift.
Calling it unpaid but not FMLA
This sounds like a compromise, but it fails to track protected time correctly and can give the employee more leave than the statute requires.
The reusable decision rule
When an employee has an existing FMLA certification and the call-in reason matches that certification, designate and document. Do not wait for magic words, do not default to discipline, and do not let exhausted PTO blur the protected-leave analysis.
Video chapters
Frequently asked questions
Does an employee have to say FMLA for an absence to be protected?
No. The employee must provide enough information for the employer to recognize that the absence may be FMLA-qualifying. The protection does not depend on the employee using the exact acronym.
What should HR do when the absence matches an existing intermittent FMLA certification?
HR should treat the absence as tied to the certified FMLA reason, designate it appropriately, track it against the FMLA entitlement, and provide the required notice.
Why is marking the absence unexcused the wrong answer?
It penalizes the employee for not using legal terminology even though the stated reason matches the certified condition. That creates FMLA interference and compliance risk.
Can HR require a new certification for every intermittent FMLA absence?
Generally no. Recertification may be available in limited circumstances, but demanding a new certification for each ordinary intermittent absence creates an improper administrative burden.
Does exhausted PTO change the FMLA designation decision?
No. Exhausted PTO may affect whether the leave is paid, but it does not remove the employer obligation to designate qualifying leave as FMLA and count it against the entitlement.
Disclaimer: CriticalThink HR™ is not affiliated with or endorsed by SHRM. SHRM, SHRM-CP, and SHRM-SCP are registered trademarks of the Society for Human Resource Management. This walkthrough is for educational purposes only and does not provide legal advice.
Practice FMLA compliance judgment before the exam
Start the 3-day preview for 55 free SHRM practice questions per certification and practice the leave, risk, and documentation judgment SHRM-CP questions expect.