In determining Family and Medical Leave Act (FMLA) applicability, does an employer need to count a joint employee, such as a temporary worker employed through an employment agency?

Author: Demetrius O. Holloway, Stites & Harbison

Yes. If employers are considered to be joint employers under the FMLA, both employers are required to count the employee in determining whether the employers are covered by the FMLA and whether the employee is eligible for FMLA leave. This is regardless of whether the jointly employed employee is maintained on one employer's payroll or both.