Joint employers, are you covered under the FMLA?


The Family and Medical Leave Act (FMLA) is a workplace law which allows employees to take unpaid leave for medical reasons, but not all companies are required to offer this benefit. One of the criteria for determining whether the law is applicable relates to the number of employees working for the business.  An employer is covered by FMLA if it employs 50 or more employees, among other requirements.  But what if your company is a joint employer?

In circumstances where there are workshare agreements, or when one employer acts directly in the interest of another employer, or where there is joint control of the employees’ work assignments, the company may be covered under the Act.

For example, if XYZ Corp. employs 20 full-time people, 20 part-time people, and jointly employs 15 workers from a temporary help agency, XYZ Corp. is probably a covered entity and should provide FMLA benefits for all of its employees.  That is because employees jointly employed by two employers are to be counted by both employers under the FMLA.

Additionally, if XYZ Corp.’s workforce vacillates, but hovers around the 50-employee headcount, the calculation may be a little trickier and depends largely on how many employees are on the payroll during 20 weeks in the current or preceding calendar year.

If this situation sounds familiar, it makes sense to evaluate your joint employment arrangements to avoid getting caught off guard with a claim of FMLA interference or retaliation.  In such cases, failing to grant leave, or terminating someone for taking a medical leave, could be a violation and result in significant liability.



" I referred a business owner to Andre and she gave him rave reviews! I appreciate having a go-to person I can refer clients to to handle increasingly complex and difficult issues. "

- M.D., Wisconsin business lawyer

" You get the work done … we know you will give it the proper attention. You tell us what we need to hear and attack the elephant in the room, whatever it is. "

- C.S., Vice President, national franchise company

" Townsel Law Firm not only secured a favorable outcome when my company was wrongfully sued by a former employee, but they took the stress out of the litigation process and successfully fought for reimbursement of attorney fees and court costs. I give Andre and his team my highest recommendation! "

- J.D., CEO Executive Search Firm