Q: If a person works at our facility for six months as a temp through a staffing agency, do those six months count toward the 12 months she has to work to be eligible for FMLA leave? Or does the required 12 months’ employment start when we hire her directly and put her on our payroll?

A: The answer is actually found in a section of the federal regulations and, coincidentally, also backed up in language from a U.S. Department of Labor opinion letter issued in 1994.

This excerpt from the opinion letter quite succinctly addresses the question:

You want to know whether the time the employee was employed by the temporary help agency and was working on your premises should be counted towards the tests that determine eligibility, specifically the 1,250 hours worked test and the 12-months of service test.

A temporary help agency and the employer are considered joint employers for purposes of determining employer coverage and employee eligibility for purposes of FMLA…Consequently, the time that the employee was employed by the temporary help agency would be counted towards the eligibility tests.

Note that if the temp worker remains in the staffing firm’s employ, that firm remains the “primary” employer, responsible for FMLA notices and providing leave and maintaining health insurance.


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