Changing FMLA Policy? Could Be ‘Worst Mistake’

The problem is that many states have their own family leave and disability laws, many of which are more protective of employees’ rights than the federal versions.

In California, for example, employees need not be “substantially limited” in the performance of a major life activity (the test under the federal ADA) in order to be protected under the state disability bias law, but merely “limited,” Farmer says.

The distinction may seem like a minor technical one, but it makes a big difference—it is much easier for an employee to make a charge stick under the state law than under the federal law. And that’s just one example, says Farmer. These deceptively small yet significant differences exist throughout the laws in a number of different states.

Important laws are changing left and right, and increasingly disgruntled employees mean an increasing number of lawsuits. Steer clear of these issues with the practical, plain-English advice you’ll get at BLR’s National Employment Law Update conference. Sign Up Now

Farmer, a frequent speaker on employment law issues, is the managing shareholder of the San Francisco office of the law firm Ogletree Deakins.

You’re on Your Own to Figure It Out

Unfortunately, when the feds or state lawmakers approve new laws or changes to existing laws, they generally don’t give much guidance for employers about how the laws interact. “For employers in states with their own disability and leave laws, federal and state laws may no longer be consistent, requiring employers to determine on their own which laws to apply,” says Farmer. This is particularly challenging right now, because “following the new FMLA and ADA amendments may cause employers to violate state laws that provide a greater benefit for employees,” Farmer says.

Employers are always obligated to follow the more employee-friendly path when state and federal employment laws conflict, says Farmer. But that’s often not as easy as it sounds. Sometimes it’s not at all clear which option to take. Farmer points out that California, for example, “has not yet determined which aspects of the 760 pages of new FMLA regulations it will adopt, leaving California employers on their own to determine which law—state or federal—provides the greater benefit for employees that employers must follow.”

Expert Advice on ADA/FMLA Changes and Interplay

Farmer is the author of several widely used employment law publications and a frequent speaker for HR groups nationwide. He was recently recognized as one of California’s leading employment lawyers in Chambers USA, America’s Leading Business Lawyers.

Farmer will bring his expertise to BLR’s National Employment Law Update conference this fall, held at the Venetian in Las Vegas from Oct. 19-21. The topics he’ll discuss include the ADA, FMLA, and workers’ comp. He notes: “We will cover not only federal developments, but their impact on state laws and how this will impact changes to your policies and practices.” Among the subjects to be covered are:

• Recent amendments to the FMLA and the ADA, and changes you must make now to your leave policies and practices,


• How federal disability and leave changes impact your obligations under state law, and how this affects your HR policies and practices, and


• How to integrate leave (FMLA), disability (ADA), and workers’ compensation laws to help you effectively manage overlapping leave issues.

Now’s the time to arm yourself with the tools you need to succeed. Sign up now for BLR’s National Employment Law Update conference.

In addition to Farmer’s talk on these important and timely topics (and presentations of practical solutions from other experts), you’ll also have the opportunity to network with your peers, obtain valuable HRCI recertification credit, and enjoy all that Vegas has to offer from your convenient home base at the Venetian.

For more information, or to register, click here. Space is limited, so don’t delay.