Are you an employer covered by the the Families First Coronavirus Response Act (FFCRA) and do you use temp employees?
I’ve got something to share with you.
Over the past few weeks, I’ve been giving presentations to employers on the FFCRA [who hasn’t!?!] and have counseled them on their FFCRA obligations with respect to the temp employees whose services they use (from the temp agencies that employ them).
Using the FMLA classic regulations as my authority, I’ve counseled these employers that they are not on the hook to provide paid sick and paid FMLA leave to these temp employees so long as they are employed by the temp agency. Since they are the “secondary employer,” after all, these employers can defer to the temp agency, which is responsible for making FFCRA payments.
But then the DOL released FAQ #90.
In FAQ #90, the DOL addressed how a temp employee is provided paid sick leave (EPSL) and paid FMLA leave (FMLA+) under the FFCRA.
Before I spill the beans on FAQ #90, though, let me first remind you of how a temp agency/client employer set up works under a typical FMLA scenario.
Use of Temp Agencies and Impact on FMLA
In a typical FMLA situation, if an employer needs temporary workers to perform work, they contact their local temp agency, which supplies the workers to the employer. Not many more questions asked.
If the worker later needs to take FMLA leave, the temp agency is considered the “primary” employer, which is responsible for providing the requisite FMLA notice, leave, health benefits and job restoration. The client employer is the “secondary employer” which, for FMLA purposes, simply is required to accept the worker being restored from FMLA leave so long as it is still using temporary employees from the agency and the agency sends the employee returning from leave to the employer. 29 C.F.R. §§ 825.106(c) and (e)
So, to recap:
Primary employer (temp agency): Provides the notices and substantive leave
Secondary employer (employer using temp help): You take ’em back when they’re ready to come back and don’t dare retaliate against ’em for taking leave [that’s it!]. Otherwise, you just sit there and look pretty, right?
But What About FAQ #90?
Here’s where FAQ #90 comes in. Take a read here if you’d like.
In a strange twist, the DOL tells us in this latest FAQ — issued last week without any fanfare because by this time we’re all just gassed after reading the 89 FAQs leading up to it:
- If a temp employee is employed by a temp agency with 500 or more employees, the temp agency is not obligated to pay the employee EPSL or FMLA+. [Makes sense, because the temp agency is too large to be covered by FFCRA.]
- In this case, where the temp employees is placed then will generally be required to provide the employee with EPSL and FMLA+ when it has fewer than 500 employees.
Huh?
Remember my quick temp employee lesson I provided above? The one where I told you that the “primary” employer — that is, the temp agency — pretty much has all the responsibilities in an FMLA situation?
This latest FAQ seems to turn that general theory on its head. Surely, the DOL didn’t mean to heap upon employers (that hire temp help) the obligation to pay EPSL and FMLA+ to the temp employees it retains from a temp agency.
Or did it?
Insights for Employers
What does this mean for employers? Couple of thoughts here:
- Despite this somewhat inartful FAQ, I am reading it very narrowly. Keep one premise in mind: the FAQ does suggest that the employer utilizing the temp’s services is on the hook for EPSL and FMLA+ if they are a joint employer with the temp agency. Keep in mind a true joint employer:
- Hires or fires the employee;
- Supervises and controls the employee’s work schedule or conditions of employment to a substantial degree;
- Determines the employee’s rate and method of payment; and
- Maintains the employee’s employment records.
- Therefore, in many employee leasing situations, the employer simply will not have this kind of control over the temp employee. As a result, the argument is that the far majority of employers (even though they are covered FFCRA) are not required to provide EPSL and FMLA+ to temp employees because they don’t have the requisite control over them.
That’s my story, and I am sticking to it. In the meantime, it would be nice to get a clarifying FAQ from the DOL to put us at ease.
Then again, for our collective sanity, perhaps its current list of 93 FAQs is just fine…