The Essential Guide to Family & Medical Leave

24 | the essential guide to family and medical leave
Primary and Secondary Employers’ Responsibilities
So what are the responsibilities of the primary and secondary employers?
Well, the primary employer’s responsibilities are pretty much the same as
those of any company subject to the FMLA. It must provide FMLA notices
to joint employees, grant and administer their FMLA leaves, and restore
them to their jobs when FMLA leave is over. The primary employer can’t
interfere with employees’ FMLA rights or discriminate against employees for
asserting those rights or the rights of others. We’ll discuss how to implement
all these requirements in future chapters.
The secondary employer’s responsibilities are a little less onerous. As long
as the secondary employer is still jointly employing anyone with the primary
employer when the employee’s leave ends, the secondary employer must let
any joint employee on FMLA leave return to the same position he or she
held before the leave. Additionally, the secondary employer can’t interfere
with a joint employee’s exercise of FMLA rights and can’t retaliate or
discriminate against the employee for asserting FMLA rights or for assisting
other employees in asserting those rights. Even a secondary employer that
would not otherwise be covered by the FMLA (for example, because it
employs less than 50 employees even counting joint employees) is bound by
these obligations.
Example: At the end of his leave, Aaron wants to return to his IT technician position
with your company. Your company still has 10 of the IS-2 technicians placed through
the temporary agency. Must your company return Aaron to his technician position
even though it no longer employs 50 employees including the joint employees?
Yes. As a secondary employer of a joint employee, your company must return
Aaron to his position.