Q: We regularly utilize temporary employees, some of whom we hire permanently. Does the time they work as a temp (through an agency) count toward the 12-month and 1,250 hour eligibility requirements?
A: An employee is eligible to take FMLA leave when, among other things, he/she has worked for the employer for 12 months (which, of course, need not be consecutive) and worked 1,250 hours in the previous 12-month period.
According to the Department of Labor, the time worked as a temporary employee does indeed count toward the 12-month service and 1,250 hour requirement. In one short sentence in the FMLA regulations, the DOL sums up its position:
joint employment will ordinarily be found to exist when a temporary placement agency supplies employees to a seconary employer. 29 C.F.R. 825.106(b)(1)
This position is only further cemented by a long-standing 1994 DOL opinion letter, in which the agency confirmed that "the time that the employee was employed by the temporary help agency would be counted towards the eligibility tests" under the FMLA. I wish it weren't so, but the courts generally have agreed with DOL's position. Mackey v. Unity Health System (finding that, for FMLA eligibility purposes, "an employee's term of employment begins once assigned by the temporary agency, rather than when hired as a permanent employee").
No wiggle room here, as far as the DOL is concerned. As to FMLA eligibility, a temp employee apparently is no different than a regular employee on day one. No 326-point joint employer test required. No nothin'. It's just a done deal.
Since we're on the topic, one additional point is worth noting with respect to temporary employees: keep in mind that the primary employer (i.e., the temp agency) is responsible for providing the required FMLA notices, administering FMLA leave and maintaining health benefits. The secondary employer (i.e., the one receiving the employee's sevices) becomes responsible for these obligations only after the individual becomes employee an employee of the secondary employer permanently.