• The Reasonable Accommodations for Pregnant Workers Act Creates New Obligations for Maryland Employers
  • May 27, 2013 | Author: Richard G. Vernon
  • Law Firm: Lerch, Early & Brewer, Chartered - Bethesda Office
  • Lost in all of the publicity surrounding Maryland Governor Martin O’Malley’s signing the Firearm Safety Act of 2013 into law on May 16, 2013, is the fact that he also signed another bill into law the same day, which will directly impact every Maryland employer with 15 or more employees, namely, the Reasonable Accommodations for Pregnant Workers Act (“RAPWA”). The new law creates obligations for employers to accommodate pregnant employees, beyond what the Americans with Disabilities Act already requires.

    RAPWA is an amendment to the state’s Human Relations law (subtitle, Discrimination in Employment) and in particular, to its provisions that provide protections to disabled employees (as well as applicants). It will go into effect on October 1, 2013.

    RAPWA’s major impact is that it requires an employer to provide a reasonable accommodation “for an employee’s disability [as defined elsewhere in the law] caused or contributed to by pregnancy; and that does not impose an undue hardship on the employee’s employer.” As a result, if a pregnant employee requests a reasonable accommodation, the employer has to discuss “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.

    In addition, if the employee requests a transfer to a less strenuous or less hazardous position as a reasonable accommodation, the employer must transfer the employee for a period of time, up to the duration of the pregnancy, if:

    • The employer has a policy, practice, or (Heaven forbid!) union contract requiring or authorizing the transfer of a temporarily disabled employee to a less strenuous or less hazardous position for the duration of the disability; or

    • The employee’s health care provider advises the transfer and the employer can do so without either: (i) creating another position; (ii) discharging any other employee; (iii) transferring any employee with more seniority than the pregnant worker; or (iv) promoting the employee to a position for which she is not qualified.

    The employer may require the employee to provide a certification from the employee’s health care provider as to the medical advisability of a reasonable accommodation, to the same extent that certification is required for other temporary disabilities. The law sets conditions for such a certification, in that it must state the date on which the accommodation became medically advisable, the probable duration of the accommodation, and an explanation of the medical advisability of the accommodation.

    Each employer is also required to post a notice and include information in its employee handbook, concerning “an employee’s rights to reasonable accommo¬dations and leave for a disability caused or contributed to by pregnancy.”

    As suggested above, the new Maryland law expands employers’ obligations beyond those imposed under the federal Americans with Disabilities Act, as amended (ADA), with respect to pregnant employees. Under the ADA, pregnancy is not a protected disability, although its implementing agency, the Equal Employment Opportunity Commission (EEOC), and a number of federal courts have recognized that a pregnancy-related impairment, such as complications of pregnancy, may constitute a disability. Last week, a bill similar to the new Maryland law was introduced in Congress under the name, the Pregnant Workers Fairness Act.