What Happens When a Contingent Worker Requests FMLA Leave? | DCR Workforce Blog

What Happens When a Contingent Worker Requests FMLA Leave?

Family and Medical Leave ActMost companies understand how to conform with the Family Medical Leave Act (FMLA) when employees request a leave.  However, misconceptions regarding responsibilities associated with contingent workers can result in unintended FMLA violations and potential litigation.

If you are operating under the assumption that temporary workers are not your employees – and not your problem – you are already on dangerous ground.

FMLA leave eligibility of a temporary worker places different responsibilities on the staffing agency, and its client who the worker is assigned to. This issue has been addressed and clarified in the landmark case, Cuellar vs. Keppel Amfels, as follows:

  • The staffing agency deploying the worker is typically considered the employer of record or primary employer; as the staffing agency sources and hires the worker and administers payroll and benefits.
  • The client is deemed to be part of a joint employment relationship, serving as the secondary employer.  The FMLA defines a joint employment relationship as one in which both parties share control of the worker in terms of who has the right to hire, fire, assign, direct, or control the work. The client is deemed to be part of a joint employment relationship, serving as the secondary employer.  The FMLA defines a joint employment relationship as one in which both parties share control of the worker in terms of who has the right to hire, fire, assign, direct, or control the work.
  • Responsibility for both FMLA leaves and job restoration falls upon the primary employer; who in the case of a temporary worker will be the staffing agency. A staffing agency’s client is not responsible to provide FMLA leave to the worker.
  • Secondary employers bear some obligations under the FMLA. They may not interfere with a worker’s FMLA rights by discouraging the use of statutory leave. A worker is also protected from discrimination for using the FMLA leave.
  • The client of the staffing agency (the secondary employer) is responsible for accepting a worker returning from FMLA if it continues to utilize an employee from the temporary staffing agency, and the agency chooses to place the employee with the secondary employer.
  • When the staffing agency does not re-instate the worker with the same client after returning from FMLA leave, the worker may not hold the secondary employer liable for violating the FMLA.

What must the primary employer do (i.e., staffing agency) when an employee requests FMLA leave?

  1. Determine applicability: FMLA applies to any company with 50 or more workers. The staffing agency and the client both will have FMLA responsibilities toward temporary employees if the number of regular plus temporary and leased employees is 50 or more. For example, a client engaging 10 temporary employees and directly employing 40 employees is covered under the FMLA.
  2. Determine eligibility: The most significant eligibility requirements are that the worker must have worked at least 12 months (which do not have to be consecutive) for the employer; and have worked at least 1,250 hours during the 12 months immediately before the date FMLA leave begins.
  3. Verify legitimacy of the request:  If there is cause to question the legitimacy of the request, look at the vacation and FMLA requests previously lodged by the worker to establish the need for further investigation into the potential abuse of FMLA leave entitlement. A medical certificate is an imperative to claiming FMLA leave as it validates the need for leave based on grounds of health. Do not hesitate to call for a second opinion to validate medical certification. You can also ask for a re-certification of the original condition which entitles the worker to FMLA leave.

While job restoration is the staffing company’s responsibility, the client as the secondary employer must accept the worker returning from FMLA leave if the client continues to use a temporary staffing employee and the staffing company is still providing the client “temps”.  If a “replacement worker” has been filling in during the leave, that worker must step out of the position to accommodate the returning worker.

To reduce the risk of FMLA non-compliance or abuse, we advise staffing agencies to take the following steps:

  • Set a reasonable time limit for submission of supporting documentation such as a medical certificate.
  • Establish a leave policy which requires the employees to use up all their regular paid leave (like sick leave, vacation and other paid time off) before applying for FMLA leave.
  • Set a requirement for advance notice ranging from 30 days to 1 or 2 days to avail FMLA leave – depending on the circumstances and practicability.
  • Establish attendance rules which specify policies like termination for a ‘3-day no-call, no show’ and for missing 5 days without excuse – even if the employee later claims it was under FMLA.
  • Train staffing agency staff on FMLA requirements so to avoid incorrect advice (such as in the case cited above in which the worker was told by the agency to seek unemployment compensation rather than making a request to the client for reinstatement.
  • Educate client staff on their obligations as secondary employers.  Be sure that they understand the timeframe for the FMLA leave and that a plan is in place for reinstatement.
  • When placing a “replacement worker” for the individual on leave, clearly stipulate that the assignment will end when the individual returns and is ready for reinstatement.

As businesses juggle the use of temporary workers, performance imperatives and worker satisfaction; such clarity on compliance related issues will provide great relief in managing their day-to-day operations.


Disclaimer:
The content on this blog is for informational purposes only and cannot be construed as specific legal advice or as a substitute for competent legal advice. They reflect the opinions of DCR Workforce and may not reflect the opinions of any individual attorney. Do contact an attorney for advice specific to your issue or problem.
Lalita is a people/project manager with extensive experience in operations, HCM and training and development across industries like banking, education, business consulting, BPO and information technology. She believes in a dynamic approach to life and learning as change is the only constant.