Dear Addi P.,

I'm trying to figure out the rules regarding the FMLA and temporary employees. My business employs temporary workers as well as independent contractors. Do either of these types of employment count toward FMLA eligibility? If so, what considerations should I make?

TEMPorarily Confused

Dear TEMPorarily Confused,

A bit of confusion is understandable when it comes to the FMLA and temporary employees. The key is determining whether these workers should be considered temporary employees or independent contractors. Before we dive into that question, let's revisit some FMLA basics.

General FMLA Coverage Rules

As the U.S. Department of Labor states, this federal law provides eligible employees up to 12 weeks of unpaid leave each year for:

  • The birth and care of a newborn
  • The placement of a child for adoption or foster care
  • The care of an immediate family member who is seriously ill
  • The care of an employee's own medical condition that makes them unable to do their job
  • The active-duty military status of the employee or a close family member

The employee's job and any applicable group health benefits are protected while they're on leave.

The FMLA applies to private companies with 50 or more employees, as well as to all public agencies and both public and private elementary and secondary schools. Any employee who has worked for your company for at least 12 months and for at least 1,250 hours over the past 12 months is eligible for FMLA leave, provided they work at a location that has 50 or more employees within 75 miles. That includes work performed by temps.

Employee or Independent Contractor?

Temporary workers may be eligible for leave under the Family and Medical Leave Act (FMLA) if they meet certain criteria, but independent contractors are never eligible. The key to staying on the right side of the rules is to make sure you don't mix up the two categories of workers, even if you've hired them through a temporary employment agency or professional staffing firm.

Unfortunately, there is no single, uniform test that can be applied to determine whether someone is an employee or an independent contractor. In general, the distinction depends on how much control you have over the workers and how they do their work. If you get to decide only what the results of the work will be, but have no right to dictate what the person must do to achieve that outcome, then those workers might be independent contractors, but use caution when making that determination.

It is critical to understand that the determination of whether a particular worker is an independent contractor or a temporary employee requires a nuanced, fact-specific analysis that takes into account your location as well as the unique facts and circumstances of your workplace and the individual's responsibilities. Employers are strongly advised to seek the advice of experienced legal counsel when making such a determination.

Primary vs. Secondary Employers

There's another issue to consider when it comes to the FMLA and temporary workers. If you hire temporary workers through an agency, they might have a joint employment relationship with your company and the agency. According to DOL regulations, the agency is usually considered the primary employer, while your company is the secondary employer, but this may vary depending upon particular circumstances.

As the primary employer, a temporary or staffing agency is responsible for providing FMLA leave, maintaining the appropriate records, and ensuring other employee protections under the law. If you are the secondary employer in the joint employment of a temporary worker, you cannot interfere with that worker's right to any FMLA leave granted by the primary-employer agency. So even if your business is exempt from the FMLA because it doesn't meet the size threshold, you may have temporary workers who are entitled to leave because they are jointly employed by an agency that is covered. If you are a regular client of the agency, you will likely have to give those employees the same or equivalent job when they return from leave.

Further, it is important to remember that the time an individual works for you as a temporary employee through an agency must be counted when determining their FMLA eligibility if you later directly hire that person as a regular employee. For example, let's say Pat works for you doing bookkeeping through an agency from January 1 through March 31. You then hire her as a regular employee beginning on April 1. If Pat requests FMLA leave from you on January 2 of the following year, the time she spent working for you through the agency must be included when determining whether she is eligible for FMLA.

You're also not totally off the hook for record keeping when you work with an agency: The law requires you to keep payroll and identifying data on jointly employed temporary workers.

That's a basic breakdown of some important things you should know about the FMLA and temporary employees. For additional information, you should visit the DOL's Wage and Hour Division.

Take care,

Addi P.

Addi P. is a digital character who represents the human expertise of ADP. The questions and challenges come from professionals who manage people at companies of all sizes. The advice comes from ADP experts who have a deep understanding of the issues and a passion for helping leaders create a better workplace. If you have a challenge you'd like to pose for Addi P., complete this simple form.

The information provided here is for general informational purposes only and not legal, insurance, financial or tax advice. The information and services ADP provides should not be deemed a substitute for the advice of a professional who can better address your specific concern and situation. Any information provided here is by nature subject to revision and may not be the most current information available on the subject matter discussed.

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