• Maryland employers may need to provide accommodation to employees with disabilities by offering alternative job postings
  • June 6, 2017
  • The Maryland Fair Employment Practices Act (“MFEPA”) makes it an unlawful for an employer to refuse to make a reasonable accommodation for an employee that has a disability known to the employer. Regulations implementing the Act provide that an employer many not deny an employment opportunity to an employee with a disability, if the basis for the denial is a need to accommodate the individual’s physical or mental limitations, and the accommodation would be reasonable.

    Earlier this year, in Townes v. Md. Dept. of Juvenile Services, the U.S. District Court in Maryland had an opportunity to apply this law to a government employee who was diagnosed with bipolar disorder. The employee’s treating psychiatrist recommended that she work from a different office location within the state-wide department, in order to reduce travel. The employee contended that there were open positions within the department that would require her to engage in less travel, but the department declined to consider her for any of those jobs when she returned from disability leave. She further alleged that her employer failed to perform an individual assessment to determine whether she was qualified for another job, beyond her current position. The employer filed a motion for summary judgment, arguing that it was entitled to a favorable judgment as a matter of law on the facts as alleged by the employee, without need to proceed to trial on those facts.

    The employee argued that the MFEPA is similar to the Americans with Disabilities Act (“ADA”) in requiring an interactive process by which an employer conducts an individualized assessment for an employee with a disability. She pointed to an earlier decision by the Maryland Court of Appeals, in which that court broadly interpreted the phrase “job in question.” The court also looked to a Maryland state regulation that requires an employer to consider an employee’s request for another job position if she becomes disabled.

    The question in the summary judgment motion came down to whether a Maryland employer is required by the MFEPA to assess whether an employee with a disability can perform the essential functions of any job opening within the organization, or only those that are located in the employee’s existing work location. While the employer did not dispute that it was required to perform a review to determine whether a reasonable accommodation was available to allow the disabled employee to perform essential job duties, it questioned whether it had to assess whether the employee can perform job functions at any job posting within a multi-site organization. In ruling on this pre-trial motion, the court found that the MFEPA statute does not preclude a jury from finding that there is such an obligation, and therefore the court allowed the case to proceed toward trial.

    This ongoing case suggests that federal courts in Maryland may be inclined to interpret the MFEPA in a similar manner as the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act. If so, then upon learning of an employee’s request for a transfer to another job location due to a claim of disability, an employer should engage in good faith interactions with the employee (and an individualized assessment), and try to find an appropriate job posting for the employee elsewhere within the organization. As noted, this case has not yet reached trial, and the plaintiff still must prove her case to a jury in order to prevail on her theory.