US Department of Labor logo

US Department of Labor logoBackground

The Family and Medical Leave Act (FMLA) allows eligible employees to take 12 weeks of unpaid leave because of their own serious medical condition or that of a parent, spouse, or child. It also allows for up to 26 weeks of leave for an eligible worker caring for a closely related military service member recovering from a serious injury or illness suffered while on active duty in the armed forces.The FMLA generally covers employers with 50 or more employees in 20 or more workweeks per year in the current or preceding calendar year.

Staffing Issues

These provisions mean that small businesses, including many of your clients, are excluded from FMLA regulations. However, most staffing firms are subject to FMLA, which can make for some unusual circumstances. Because FMLA requirements state that an employee taking leave must be reinstated at their former position once the employee returns from leave, a staffing agency might be required to remove another employee from the job to reinstate the returning employee.

Be sure your firm is up-to-date on all FMLA requirements and that you know what to do if an eligible worker has a triggering event. To help you get started, here is a portion of the FMLA checklist from Gentry Locke Rakes & Moore’s The Little White Book* of employment checklists. Please note that state laws can vary and federal law changes.



Triggering Event [30 DAYS advance notice required if foreseeable]

__  Employee provides notice of pregnancy or adoption to you.

__  Employee provides notice of employee’s serious health condition or need to care for a family member with serious health condition, or you are otherwise notified of unforeseen serious health condition.

__  Document all information provided – is it FMLA or just sick leave? Remember: include any voice messages in your documentation.

Employer Initial Response on Eligibility

__ 5 business days to complete and provide eligibility notice [Form WH-381] and employee’s rights and responsibilities notice [WH PUB 1420].

__ Provide Form WH-382 if you have enough information to designate leave as FMLA. Provide Form WH-380-E or Form WH-380-F if information is incomplete/insufficient….

For questions or to get a copy of the current edition of The Little White Book, contact staffing practice group leader Diane Geller at (540) 983-9396 or email

*Copyright © 2010 Gentry Locke Rakes & Moore, LLP. All rights reserved.

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