Are Temporary Employees Eligible for FMLA Leave?
Meta description: Learn when temporary employees qualify for FMLA leave, how staffing agencies and client companies are counted, and what job protections apply.
Temporary status alone does not disqualify a worker from leave under the Family and Medical Leave Act (FMLA). A temporary employee may qualify if the employer is covered and the worker meets the law’s service and hours requirements. The answer can be less straightforward when a staffing agency places a worker at a client company, because both businesses may have legal responsibilities. Understanding who employs the worker, how long the worker has been employed, and how many hours were worked helps clarify eligibility.
Can Temporary Employees Qualify for FMLA?
Yes. Temporary employees can be eligible for FMLA leave. The FMLA does not create a separate category that excludes workers simply because their jobs are temporary, seasonal, or supplied by a staffing agency. Instead, eligibility generally depends on the employee’s relationship with a covered employer and whether the employee meets specific service and hours-of-work tests.
FMLA leave is generally unpaid, job-protected leave for qualifying family and medical reasons. An eligible employee can take up to 12 workweeks of leave in a 12-month period for most qualifying reasons, such as the employee’s serious health condition, caring for a qualifying family member, or the birth or placement of a child. Different rules apply to certain military caregiver leave.
Eligibility does not mean every absence is automatically protected. The employee must have a qualifying reason, provide required notice, and, when applicable, supply requested medical certification. The employer must also be covered by the law.
The Three Main FMLA Eligibility Requirements
For most private-sector workers, FMLA eligibility depends on three tests. The employee must satisfy each one when leave is scheduled to begin.
- Employer coverage: The employer must be covered by the FMLA.
- Length of service: The employee must have worked for the employer for at least 12 months.
- Hours worked: The employee must have worked at least 1,250 hours for that employer during the 12 months immediately before leave begins.
In addition, the employee generally must work at a location where the employer has at least 50 employees within 75 miles. For staffing arrangements, the relevant employer and worksite can require a closer review.
Employer coverage
Private-sector employers are generally covered if they employed 50 or more employees for at least 20 workweeks in the current or preceding calendar year. Those weeks do not have to be consecutive. Public agencies are covered employers regardless of their employee count, and public and private elementary and secondary schools are covered regardless of size.
Being a covered employer does not automatically make every employee eligible. A temporary worker at a covered business must still meet the individual service, hours, and worksite requirements, unless a particular rule or arrangement changes which employer is responsible.
The 12-month employment requirement
The 12 months of employment do not always have to be consecutive. In general, the employer must count prior service with that same employer, subject to limits on breaks in service. A break of seven years or more usually does not have to be counted, unless it resulted from certain military service or a written agreement, including a collective bargaining agreement, addressing reemployment.
For a staffing-agency worker, the central question is often whether the staffing agency, the client company, or both are considered employers. If the staffing agency is the employer, service through that agency may matter even when assignments change. If the client is also a joint employer, time working for that client may be relevant to the client’s obligations. The facts of the working relationship matter; job titles and contract labels do not decide the issue by themselves.
The 1,250-hour requirement
The employee must have worked at least 1,250 hours for the relevant employer during the 12 months before leave begins. This is an actual-hours test. Paid vacation, holidays, sick leave, and other time off generally do not count as hours worked, even if the employee received pay for them.
For employees who are not covered by the Fair Labor Standards Act (FLSA) timekeeping rules, the employer generally uses the hours the employee actually worked. If an employer has not kept records of hours worked, it bears the risk of showing that the employee did not meet the hours requirement. A temporary worker’s shift records, timecards, and payroll information can be especially important when assignments are intermittent.
How Staffing Agencies and Client Companies Affect Eligibility
A temporary worker may be hired and paid by a staffing agency but perform work at a client company. Under FMLA regulations, the staffing agency and the client company may be joint employers if they both exercise control over the worker’s employment. Relevant facts can include who hires or assigns the worker, sets schedules, supervises daily work, handles payroll, and has authority to end the assignment.
The existence of a staffing contract does not settle the issue. One business may be the employer, or the agency and client may share employer responsibilities. The U.S. Department of Labor’s regulations explain that joint-employer arrangements can affect eligibility calculations and employer duties.
When the staffing agency is the employer
If the staffing agency is the worker’s employer, it generally has to assess FMLA eligibility using the applicable rules. The agency’s employee count and the worker’s service and hours with that agency may be relevant. The worksite analysis may also take account of the client location where the worker reports or from which assignments are made, depending on the arrangement and applicable regulations.
A change from one client assignment to another does not necessarily mean the worker has started a new employment relationship with the agency. If the agency continues employing the person, prior service may remain relevant. Whether a period without an assignment counts as a break, and how it affects the 12-month service test, depends on the actual employment relationship and the length and circumstances of the break.
When the client company is a joint employer
If a client company is a joint employer, it may have FMLA responsibilities for the worker. The joint-employment rules generally treat the worker as employed by both businesses for relevant FMLA purposes, although the primary and secondary employers can have different duties. The primary employer is generally responsible for matters such as providing required notices, maintaining benefits, and restoring the employee to a job. The secondary employer may have duties including not interfering with FMLA rights and, in certain circumstances, restoring the worker to employment.
The exact allocation of responsibilities can depend on the relationship and the regulations. A client company should not assume that a staffing agency’s involvement automatically removes its obligations. A worker who is denied leave solely because the assignment is described as “temporary” may wish to ask which company made the decision and what eligibility test it used.
Examples of How the Rules May Apply
| Situation | What to examine |
|---|---|
| A temp has worked through one agency for 14 months and logged 1,300 hours in the prior 12 months. | The agency relationship, agency coverage, and applicable worksite rules still need review. The worker may meet the service and hours tests but must satisfy all eligibility requirements. |
| A worker has been assigned to a client for 10 months but has worked for the staffing agency for 18 months. | Whether the client is a joint employer matters. The worker’s service with the agency does not, by itself, establish 12 months of service with the client if the client is a separate, non-joint employer. |
| A seasonal employee works only 900 hours in the past year. | The worker generally does not meet the 1,250-hour requirement, even if the worker has been employed for at least 12 months. |
| A temporary employee has worked for a covered employer for more than a year but works at a small, remote location. | The 50-employees-within-75-miles test may prevent individual eligibility, unless the worksite rules point to another location or the employer is a public agency or covered school. |
What FMLA Leave Protects—and What It Does Not
When an eligible employee takes approved FMLA leave for a qualifying reason, the employer generally must maintain group health insurance coverage on the same terms as if the employee had continued working. The employee may have to continue paying the usual share of premiums. At the end of qualifying leave, the employee generally must be restored to the same job or an equivalent job, subject to the law’s exceptions.
FMLA protection does not guarantee that a temporary assignment will last indefinitely. If a temporary job or assignment would have ended for legitimate reasons unrelated to the employee’s leave, the FMLA generally does not require the employer to extend it. However, an employer cannot use the temporary label as a pretext to deny protected leave, retaliate against an employee, or end an assignment because the employee exercised FMLA rights.
FMLA leave is generally unpaid, but employees may be able—or required under an employer’s policy—to use accrued paid leave during some or all of it. State and local laws may provide paid family or medical leave, broader job protections, or different eligibility standards. Those protections can apply even when an employee does not qualify for federal FMLA leave.
How Temporary Employees Can Check Eligibility
A worker can take practical steps to clarify eligibility before leave is needed, when possible:
- Identify the employer or employers. Review hiring documents, pay statements, assignment paperwork, and workplace supervision arrangements. Ask the staffing agency and client which entity handles FMLA requests.
- Confirm the service period. Gather start dates, assignment dates, and records of breaks in employment. Ask how prior service is being counted.
- Estimate hours actually worked. Review timecards and pay records for the 12 months before the planned leave start date. Do not count paid time off as hours worked for the 1,250-hour test.
- Ask about the worksite calculation. The relevant location is not always simply the building where the worker performs daily duties. For staffing arrangements, the employer may need to apply specific regulatory rules.
- Request an eligibility determination. An employer generally must notify an employee who requests FMLA leave whether the employee is eligible, typically within five business days, absent extenuating circumstances. If the employee is ineligible, the notice must state at least one reason.
Employees should give notice as soon as practicable when the need for leave is foreseeable, such as for a planned treatment or expected birth. For an unexpected emergency, notice should be given as soon as practical under the circumstances. Employers may request certification for qualifying medical leave, subject to FMLA rules.
Where to Get Reliable Help
The U.S. Department of Labor’s Wage and Hour Division administers the federal FMLA. Its resources explain employee eligibility, employer coverage, joint employment, notices, and leave rights. Workers can consult the Department’s FMLA guidance and the regulations in 29 C.F.R. Part 825. Questions about a particular situation can be directed to the Wage and Hour Division or an employment-law professional.
In short: temporary employees can qualify for FMLA leave, but temporary status alone is not enough to determine eligibility. The decisive issues are employer coverage, the worker’s employment history and hours, the worksite rule, and whether a staffing agency and client company share employer responsibilities.