Assuming the temporary employee meets the FMLA’s eligibility criteria, and assuming that both the staffing company and the client employ at least 50 employees*, both will have FMLA responsibilities toward temporary employees.
Section 825.106 of the Code of Federal Regulations deems staffing companies and clients “joint employers” for FMLA purposes. The staffing company is usually the “primary employer” and the client is usually the “secondary employer”. The staffing company, as the primary employer must give all required notices to its employees, provide FMLA and, if applicable, maintain the employee’s health benefits.
While job restoration is also the staffing company’s responsibility, the client as the secondary employer must accept the employee returning from FMLA leave in place of the replacement employee if the client continues to use a temporary staffing employee and the staffing company is still providing the client “temps”. The client as the secondary employer may not interfere with a temporary employee’s attempt to exercise FMLA rights or discharge or discriminate against employees for opposing practices prohibited by the FMLA, even if it the FMLA does not otherwise apply to it.
*The staffing agency and the client both must count temporary employees in determining if they are covered employers, whether or not those employees are actually on their payroll. For example, a client engaging 10 temporary employees and directly employing 40 employees is covered under the FMLA.