The Maryland Act regarding reasonable accommodations for disabilities due to pregnancy was approved by Governor O’Malley late last week and will become effective on October 1, 2013. The Act amends Maryland’s existing statute requiring employers with 15 or more employees to provide reasonable accommodations to individuals with disabilities. Specifically, the new Act requires that employers provide reasonable accommodations for employees with a disability caused or contributed to by pregnancy. Currently, under Maryland law, disabilities due to pregnancy are only required to be treated similar to other temporary disabilities. Under the new law, Employers will be required to assess whether a reasonable accommodation can be provided to a pregnant employee without imposing an undue hardship.
The Act specifically provides that if an employee requests a reasonable accommodation, the employer shall explore with the employee all possible means of providing the reasonable accommodation, including:
- changing the employee’s job duties;
- changing the employee’s work hours;
- relocating the employee’s work area;
- providing mechanical or electrical aids;
- transferring the employee to a less strenuous or less hazardous position; or
- providing leave.
Although Maryland’s legislation only requires an employer make a “reasonable accommodation,” the specific list of changes that may be considered “reasonable” does not address whether changes to job duties would include changes to “essential functions” of the job as opposed to merely marginal functions. In addition, “undue hardship” is not defined in the Act. Thus, the Act’s requirements will necessarily be subject to interpretation by the courts.
The Act also addresses an employer’s responsibility for assessing whether to grant a pregnant employee’s request for a reasonable accommodation to be transferred to a less strenuous or less hazardous position. If an employer maintains a policy, practice, or collective bargaining agreement providing for the transfer of a temporarily disabled employee to such position, then the employer shall likewise transfer the pregnant employee. In addition, absent a policy, practice, or agreement, if the employee’s medical provider advises such transfer, an employer is required to transfer the pregnant employee for a period of time up to the duration of her pregnancy unless it would create an “undue hardship.” Under the Act, the employee should be transferred so long as the transfer does not require the employer to:
- create additional employment that the employer would not otherwise create;
- discharge any employee;
- transfer any employee with more seniority than the pregnant employee requesting the transfer; or
- promote any employee who is not qualified to perform the job.
Thus, if at the time of the request the employer has an available restricted position for which the pregnant employee is qualified, the employer will be required to transfer her.
The Act also specifically requires employers to post a notice of the rights provided under the Act in a conspicuous location and include in the employer’s employee handbook information on reasonable accommodations and leave available for a disability caused or contributed to by pregnancy.
Employers should review their employee handbook and any policies regarding disability accommodation to ensure compliance with the new Act’s requirements. Employers are required to update their policies and post a notice by October 1, 2013.