How is FMLA covered in joint employment situations?

More responsibility falls on primary employers, but both have obligations

Posted February 19, 2016

Headlines have, for some time, been covering the recent issues involving joint employers. If you think the FMLA does not have any skin in the joint employer game, think again. Just because the recent court cases don’t directly affect the FMLA doesn’t mean that you will never need to worry about FMLA joint employer considerations.

The FMLA regulations provide some detail as to joint employer obligations. Employees of both employers would likely need to be counted for purposes of employer coverage and employee eligibility. On whose payroll a particular employee is maintained is not germane to the determination.

Comparing joint employer responsibilities under the FMLA
(Note that the chart assumes both employers are FMLA-covered and that the employee is eligible for FMLA leave.)

FMLA Responsibilities of Joint Employers

Primary Employer

Secondary Employer

Count jointly-employed employees for coverage and eligibility determinations

Yes.

Yes.

For employee-eligibility determination, use its worksite for the eligibility test (50 employees within 75-miles of the worksite)

Yes, unless the employee has physically worked at the secondary employer’s facility for at least one year.

No, unless the employee has physically worked at the secondary employer’s facility for at least one year.

Provide FMLA notices to the jointly-employed employee

Yes.

No; however the secondary employer must provide FMLA notices to its own employees.

Provide FMLA leave to the jointly-employed employee

Yes.

No; however the secondary employer must provide FMLA leave to its own eligible employees.

Maintain benefits for the jointly-employed employee

Yes.

No; however the secondary employer must maintain benefits for its own employees who take FMLA leave.

Restore the jointly-employed employee to work

Yes.

No, unless the secondary employer is continuing to use the placement agency and the agency places the employee with that secondary employer.

Not retaliate, discriminate or interfere

Yes.

Yes.

Keep records

Yes, the primary employer keeps all required records.

Yes, the secondary employer keeps payroll data and identifying employee information.

This article was written by Darlene Clabault of J. J. Keller & Associates, Inc.


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