Seasonal and Staffing-Firm Hires: When Two Companies Both Owe the Same Accommodation

“Who Is the Employer?” Is Usually the Wrong Shape of Question

Managers tend to treat the question as a coin with one face up: either the staffing firm employs the worker, or we do. The EEOC's framework rejects the coin. A staffing firm and its client can both be employers of the same worker at the same time — joint employers — and the analysis turns not on whose name is on the paycheck but on the realities of control: who directs the day-to-day work, who sets the hours and the tasks, who supervises on the floor. (The control factors themselves live in an earlier EEOC guidance from 1997 covering contingent workers under the EEO laws generally; the 2000 ADA guidance builds on that foundation.) A worker assigned to your site, doing your work, under your supervisors, on your schedule is someone a fact-finder may well conclude you jointly employ, whatever the staffing contract calls the relationship.

The operational takeaway is not to run that analysis yourself — it is genuinely fact-specific, and it is exactly the question to put to counsel before the season starts. The takeaway is to stop planning as if the staffing firm's involvement removes your obligations. It may reduce them, share them, or leave them entirely intact. What it cannot safely be assumed to do is make them someone else's problem.

The Headcount Rule Nobody Warns Small Employers About

Our ADA basics guide covers the familiar threshold: the employment provisions of the ADA reach employers with 15 or more employees. What no page on this site has said until now is how the counting works when a staffing firm is involved, and it is the part that surprises people. The EEOC Compliance Manual's counting rule, verbatim: “To count employees, determine the number of employees on an employer's payroll… Add to that figure any other individuals who have an employment relationship with the employer, such as temporary or other staffing firm workers.” And it states the joint-employment version directly: if an individual is jointly employed by two or more employers, that person “is counted for coverage purposes for each employer with which s/he has an employment relationship.”

The manual's own worked example makes the arithmetic vivid. In it, a company has 13 regular employees plus five workers assigned by a temporary agency whom it jointly employs — and the EEOC counts it as an 18-employee company, over the line. (Attribution matters here: that example is a religious-harassment charge under Title VII, not an ADA case — but the 15-employee coverage test is the same under both statutes, so the counting lesson transfers exactly.) A business that thinks of itself as a 13-person shop can be, in the Commission's eyes, an 18-person shop every week its jointly employed crew is on the floor.

Now the second half, which is just as important, because without it the first half overstates the risk. Coverage is not a snapshot. The threshold test, verbatim from the same manual: an employer is covered “if it has 15 or more employees for each working day in each of 20 or more calendar weeks in the same calendar year as, or in the calendar year prior to when, the alleged discrimination occurred” — and the 20 weeks need not be consecutive. So a six-week holiday crew does not, by itself, pull a small employer across the federal line. What the test actually does is subtler and worth sitting with: it adds up all the weeks the combined headcount held, across the whole year — and the prior-year prong means a year in which you did meet the test keeps you covered through the following year, including a lean one. For a genuinely seasonal business, that is the real lesson: the year your ramp runs long enough is also the year that decides next year.

Both of You Can Owe the Same Accommodation

Here is the spine of the 2000 guidance, in the EEOC's own words. Where a staffing firm and its client are joint employers of a worker with a disability, “each is obligated to provide a reasonable accommodation needed on the job, absent undue hardship” — if it has notice of the need. The guidance's illustration is disarmingly small: a worker who is deaf, placed on a short assignment, needs a sign-language interpreter for a one-hour safety orientation; firm and client each have the duty, absent undue hardship, once they know.

That notice condition is the practical hinge, and it is where placements go wrong innocently. A worker discloses to the staffing firm's recruiter; nobody tells the site supervisor; the orientation happens without the interpreter; and the client is startled to learn it had a duty it never heard about. The fix costs nothing: agree with your staffing partner, in advance, on how accommodation needs travel — who passes what to whom, and how fast. Our guide to accessible hiring processes is written for the direct-hire case, but its core principle — build the channel before anyone needs it — is exactly the one to extend to a staffing relationship.

The Contract Can Move the Money. It Cannot Move the Duty.

The reflexive management answer to shared obligations is “we'll allocate that in the contract” — and the guidance anticipates it, in a sentence every procurement office should read whole: a staffing firm and its clients “may, through a contract, allocate responsibility for providing reasonable accommodations in any way they choose,” and in the very next breath, any such arrangement “does not alter their obligations under the ADA.” The contract binds the two companies to each other. It does not bind the worker, and it does not answer to the statute.

The enforcement edge behind that sentence is sharp. Per the guidance, a firm or client “that refuses to contribute to the cost of a reasonable accommodation may be liable for a failure to provide a reasonable accommodation, even if the other entity provides it.” The EEOC's illustration runs exactly the way a manager would hope it doesn't: the client can and does provide the accommodation alone; the staffing firm refuses its agreed share; the worker is accommodated and working — and the refusing party is still exposed. Two lessons at once: put the allocation in the contract anyway, because clarity prevents the standoff; and never treat the other company's provision of the accommodation as your exit from the question.

The Lead-Time Rule for Short-Notice Assignments

Temporary work has one honest structural difference the guidance faces squarely: some assignments appear on short notice and last only briefly. For that case, the EEOC describes a real undue-hardship route — a firm or client “can establish undue hardship by showing that the work assignment had to be filled on short notice and that the accommodation could not be provided quickly enough” for the worker to begin or complete the assignment on time. Its paired examples turn on nothing but lead time: a two-week assignment starting tomorrow, where the equipment the worker needs must be ordered and takes about a week to arrive, versus the identical assignment known three weeks out. The first is undue hardship; the second is not. Same assignment, same worker, same device — the only variable is when the need surfaced.

And then the guidance closes the loophole it just opened: a short window “will not alone constitute undue hardship.” Its own counter-example is the sign-language interpreter, which in most markets can be arranged quickly. So the lead-time rule is not an exemption for temp work; it is a description of a race between the clock and the logistics, judged case by case. The management lesson writes itself: lead time is a thing you manufacture. Every day earlier that accommodation needs surface — through the notice channel above, through early disclosure invitations in the placement process — is a day this entire category of hardship argument stops being available to anyone, including you.

Four Hiring-Process Corners Worth Knowing

• A roster is not an offer. Placing someone on a staffing firm's roster for possible future assignments is not an “offer of employment” under the ADA, per the guidance — so the post-offer stage, with its wider latitude for medical inquiry, does not begin at sign-up.
• Post-offer questions carry a same-job-category condition. After an actual assignment is offered and before duties begin, disability-related questions or medical exams are permitted — “as long as it does so for all individuals entering the same job category.” Selectively examining one worker is the violation pattern.
• Screening liability runs both directions. A staffing firm applying an unlawful qualification standard “either directly or at its client's direction” is liable; a client applying one “either directly or through a staffing firm” is liable. Neither company can launder a screening rule through the other.
• Knowledge creates exposure. While a client is generally not required to provide accommodations for the staffing firm's own application process, the guidance warns that a client which is a joint employer “may be liable for a staffing firm's discrimination if the client knows or has reason to know of the discrimination and fails to take corrective action within its control.” Looking away is not a defense.

Where a Supported-Employment Partner Fits

A natural question after all this: is working with Innovative Placements the same arrangement? The honest answer is that supported employment is a different model doing a different job — as our partnering guide puts it, unlike traditional staffing agencies, the work here is matching people to environments, with job coaching and accommodation expertise built into the placement rather than bolted on. But the legal analysis this article describes does not run on labels, ours or anyone's — it runs on the facts of who controls the work, which is precisely why the guidance box at the top says what it says. Bring your counsel the actual structure of any placement relationship you rely on, staffing firm or otherwise, and let the facts get the answer. What a partner like this changes in practice is the part this article kept circling back to: the notice channel, the lead time, and the accommodation know-how — delivered as part of the placement instead of discovered mid-season. The accommodations guide covers what the process looks like from there.

The Season-Start Checklist

• Before the ramp: ask counsel the joint-employment question about your actual staffing arrangement — not the contract's label for it.
• Count honestly: jointly employed workers may belong in your own headcount, week by week, under the 20-week test — and last year's weeks count too.
• Remember the New York floor: state-law obligations do not wait for 15.
• Build the notice channel with your staffing partner now — who tells whom, how fast — before anyone needs it.
• Put cost allocation in the contract for clarity, and never mistake it for the duty itself.
• Surface accommodation needs as early as the process allows: lead time is the whole ballgame for short assignments.
• Apply screening standards you could defend directly — routing them through another company changes nothing.

The employers series returns to its usual one-company world next week. But if your fourth quarter runs on a crew somebody else recruited, this is the piece of the series to hand your operations lead before the season starts: two companies, one worker, one duty — and a set of rules that reward the employer who asked the questions in August instead of December.