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Must we offer the same position to a temp worker returning from FMLA leave?

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in FMLA Guidelines,Human Resources

Q. We lease some of our workers from an agency. The agency handles all personnel needs of its employees, but our supervisors provide day-to-day direction to the workers. One of our agency employees, Jane, informed the agency that she was taking FMLA leave for her pregnancy. While Jane was out on leave, the agency supplied us with a replacement, Mary. Jane’s FMLA leave is over, and the agency wants to send her back. We would prefer to keep Mary. Does the FMLA oblige us to let Mary go and bring Jane back?

A. The leasing agency and your company probably will be deemed to be in a “joint employment” relationship under FMLA regulations. The employee-leasing agency is the “primary” employer, and your company is the “secondary” employer. When the leasing company sends back an employee who left on FMLA leave, your company must accept the employee back if you continue to use the same leasing agency.

This is covered in a specific FMLA regulation: 29 C.F.R. §825.106(e).

You may be able to work with your leasing company to see whether they would be willing to send Jane to another engagement if you are happier with Mary.

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