• Maryland Employers to Provide Pregnant Workers with Accommodation under New Law
  • September 27, 2013
  • Law Firm: Jackson Lewis P.C. - White Plains Office
  • Maryland Governor Martin O’Malley has signed into law the Reasonable Accommodations for Disabilities Due to Pregnancy Law. The law, which becomes effective on October 1, 2013, amends the Maryland Fair Employment Practices Act and creates new burdens for employers beyond those required under federal law. Maryland joins a growing number of states that mandate employers provide some form of accommodation to pregnant workers. (E.g., see California Issues Amended Pregnancy Regulations, Extends Coverage to Perceived Pregnancy.) Significantly, as illustrated by the new Maryland law, these state laws impose different and arguably greater obligations than such federal laws as the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), even after passage of the ADA Amendments Act (“ADAAA”).

    Federal Law
    The PDA prohibits discrimination based on pregnancy as it relates to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits (such as leave and health insurance) and any other term or condition of employment. Under the PDA, most courts have held that if a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer must treat her in the same way as it treats any other similarly situated temporarily disabled employee. Most courts have not read the PDA to impose an affirmative obligation to provide accommodations to pregnant workers where no such accommodations are afforded to employees with other temporarily disabling conditions.

    Further, the ADA generally does not require employers to offer individuals reasonable accommodations if they are temporarily disabled due to a “normal” pregnancy. This is because a “normal” pregnancy is not an “impairment” under the ADA and, therefore, cannot be a disability that would trigger ADA reasonable accommodation obligations. However, especially after the passage of the ADAAA, medical impairments resulting from pregnancy (e.g., gestational diabetes) could be sufficient to trigger ADA reasonable accommodation obligations for some pregnancy-related conditions. Even then, however, the ADA reasonable accommodation obligations may be more limited than those under state pregnancy accommodation laws, including Maryland’s new law.

    Maryland’s New Law
    Generally, the new Maryland law requires employers with at least 15 employees to provide accommodations to an employee with a disability caused by or contributed to by pregnancy, unless the accommodation would impose an undue hardship on the employer’s business. If a pregnant employee requests a reasonable accommodation, the employer must explore with the employee all possible means of providing the accommodation, including:

    • Changing the employee’s job duties or 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.

    The new law establishes special “rules” for transfer requests. If an employee with a pregnancy-related disability requests a transfer to a less strenuous or less hazardous position, the employer must transfer the employee for a period up to the duration of the employee’s pregnancy if the employer has a policy, practice or collective bargaining agreement requiring or authorizing the transfer of a temporarily disabled employee to a less strenuous or less hazardous position for the duration of the disability. For example, an employer that has a practice of offering light duty in certain circumstances (such as for work-related injuries) could be required to extend light duty to an employee with a disability caused by or contributed to by pregnancy.

    Further, where an employer does not have such policy, practice or collective bargaining agreement requiring or authorizing the transfer, but the employee’s health care provider advises the transfer, the employer must transfer the employee, unless doing so would:

    (a) create additional employment that the employer would not otherwise have created;

    (b) cause an employee to be discharged;

    (c) cause the transfer of an employee with greater seniority than the employee requesting the accommodation; or

    (d) promote any employee who is not qualified to perform the job.

    Medical Certification
    Under the new law, employers may require an employee to provide a certification from the employee’s health care provider concerning the medical advisability of a reasonable accommodation to the same extent a certification is required for other temporary disabilities. According to the law, a certification must include:

    (1) the date the reasonable accommodation became medically advisable;

    (2) the probable duration of the reasonable accommodation; and

    (3) an explanatory statement as to the medical advisability of the reasonable accommodation.

    Posting and Notice Requirements
    Under the new law, an employer must post in a conspicuous location, and include in any employee handbook that the employer maintains, information concerning a pregnant employee’s rights to reasonable accommodation, including leave.

    The Maryland Commission on Civil Rights (“MCCR”) will not issue a poster by October 1, 2013. The MCCR’s Guidance on the handbook and notice requirements (available at http://mccr.maryland.gov/publication&under;intro.html) states that the MCCR is not directed to create a poster; however, the MCCR indicates that it is reviewing all anti-discrimination posters and that it will eventually create a poster to address employee’s rights under the new law. In the interim, the MCCR suggests that employers consult legal counsel regarding the handbook and posting requirements.

    What Should Maryland Employers Do?
    Maryland employers should consider taking the following actions:

    • Reviewing with counsel their policies on reasonable accommodation;
    • Reviewing their policies, practices or contractual agreements with respect to alternative work arrangements or restricted/light duty programs;
    • Reconsidering their policies and practices regarding obtaining medical certification;
    • Reviewing and revising any employee handbooks to ensure compliance with the new law’s handbook notice requirement;
    • Working with counsel to develop a poster that complies with the Law; and
    • Training managers and supervisors regarding procedures for responding to accommodation requests from pregnant employees.