FMLA and Temp Workers: Who’s Responsible When Leave Gets Complicated?

Author

Lauren Hagen, CLMS 

Lauren Hagen is a Sr. Absence Strategy Lead at Symetra with almost 17 years of experience within the absence space with a focus on FMLA, PFML and ADA. Prior to her role at Symetra, she worked for Lincoln Financial and Liberty Mutual in various claims management roles as well as claims practices. She lives in New Hampshire with her husband and son. Write something about yourself. No need to be fancy, just an overview.
________________________________________________________________________________________________________________________________________________

The Family and Medical Leave Act (FMLA) allows eligible workers up to 12 workweeks of unpaid, job-protected leave for qualifying family and medical reasons. But when it comes to temporary employees, especially those placed through staffing agencies, the rules can feel murky. Who’s responsible for what? And do temp workers even qualify?

Let’s break it down.

Are Temporary Employees Eligible for FMLA?
Yes — temporary employees can be eligible for FMLA if they meet the standard criteria:

• Worked for the employer for at least 12 months (not necessarily consecutive).
• Worked at least 1,250 hours during the 12 months prior to the leave.
• Work at a location with 50+ employees within 75 miles

Importantly, time worked through a staffing agency counts toward these thresholds. The Department of Labor (DOL) and courts have consistently confirmed that temp workers’ hours and tenure — even across multiple assignments — are valid for FMLA eligibility.

Joint Employment: Temp Agencies and Client Employers
Under FMLA, joint employment exists when a staffing agency places a worker at a client company. In this setup, the staffing agency is typically the primary employer, and the client company is the secondary employer.

This distinction matters because each party has different obligations:

The staffing agency must:

• Provide FMLA notices to eligible employees.
• Administer FMLA leave and track eligibility.
• Maintain health benefits during leave.
• Restore the employee to the same or equivalent job after leave.
• Keep all required records.

The client company must:

• Count temp workers toward the 50-employee threshold for FMLA coverage.
• Avoid interfering with the employee’s FMLA rights.
• Accept the returning employee if they continue to use the staffing agency and the employee is reassigned.
• Maintain basic payroll records for temp workers.

Key Takeaways for Employers and HR Teams

• Don’t overlook temp workers when assessing FMLA eligibility.
• Coordinate closely with staffing agencies to ensure compliance.
• Educate managers at client sites about their role in supporting FMLA protections.
• Track hours and assignments to help temp workers meet eligibility thresholds.

FMLA compliance in joint employment scenarios requires clear communication and shared responsibility. Whether you're a staffing agency or a client employer, understanding your role ensures that temporary employees receive the protection they’re entitled to — and that your organization stays compliant.

For additional information, please see Fact Sheet #28N: Joint Employment and Primary and Secondary Employer ...