• Reassignment Must Be Considered for Disabled Employees
  • July 23, 2016
  • Law Firm: - Office
  • The Maryland Court of Appeals (our highest state appellate court) confirmed in Adkins v. Peninsula Regional Medical Center that the definition of a “qualified individual with a disability” under state anti-discrimination law includes employees who could perform the essential functions of a reassignment position, with or without a reasonable accommodation, even if they cannot perform the essential functions of their original position.

    Facts of the Case: As previously reported in our August 2015 E-Update, the employee had been employed as a storekeeper. Following hip surgery, she could no longer perform her physical job duties because of her sedentary work restriction. As advised by the employer, the employee applied for many different vacant positions both before and after her termination, but was not hired for any of them. The employee subsequently sued for disability discrimination and failure to accommodate under the Maryland Fair Employment Practices Act.

    The Court’s Decision. Under Maryland law, employers are required to provide reasonable accommodations only to “qualified individuals with a disability,” meaning that, with or without reasonable accommodation, they can perform the essential functions of the job in question. The employer argued that the job in question is limited to the employee’s current job. The Court, however, held that the employer’s view was “overly bridled” and that the job in question includes a reassignment position. And because the employee then met the definition of a “qualified individual with a disability,” the employer was required to conduct an individualized assessment (similar to the interactive process required under the American with Disabilities Act) to determine her ability to perform the essential functions of the job - including a reassignment position.

    The Court also addressed what notice of a disability and need for accommodation is required to trigger the employer’s obligation to engage in the individualized assessment of the disabled employee’s ability to perform the essential functions of the job (which is similar to the interactive process required under the federal American with Disabilities Act). In this case, the employer argued that the employee never formally requested an accommodation. The Court, however, determined that notice and the request for accommodation could have been provided by giving the Employee Health Office information about her limitations following surgery, including a medical report from her doctor, and stating “What am I supposed to do? I have to work.” Whether this was, in fact, sufficient notice would be an issue for the factfinder.

    In addition, the employer had argued that it accommodated the employee by providing additional leave after her Family and Medical Leave Act leave had been exhausted. The Court noted, however, that “providing leave as a temporary accommodation does not permanently relieve an employer of the duty to accommodate. If a reasonable accommodation remains necessary when the employee returns to work, the employer must still provide a reasonable accommodation.”

    Lessons Learned. Maryland employers must tread cautiously in addressing reasonable accommodations issues. Most certainly, if the employee cannot perform the essential functions of her original job, it is critical for employers to review whether there are any open positions to which the employee can be reassigned and which the employee can perform, with or without reasonable accommodations. Employers should also realize that a request for accommodation need not be formal in order to be deemed effective under discrimination laws. And finally, employers should understand that providing leave as an accommodation does not end the reasonable accommodation process; they must also consider other options at the end of - or in lieu of - leave.