One of the biggest changes coming to Maryland employers with 15 or more employees will last more than 9 months. Governor Martin O’Malley signed into law the requirement that employers provide to pregnant employees certain reasonable accommodations beyond those presently required by the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). Under the Reasonable Accommodations for Disabilities Due to Pregnancy Act, which amends Maryland’s Fair Employment Practices Act, absent undue hardship, employers will be required to provide pregnant employees who are temporarily disabled with various categories of accommodations, 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 hazardous position,
- or providing leave.
A job transfer to a less strenuous or hazardous position may be required if the employer has a policy, practice or collective bargaining agreement that permits such transfers in the case of other temporary disabilities; or, even without such policy, practice or CBA, the employee’s health care provider recommends that the employee be transferred and the employer can permit the transfer without (a) creating a new job or position; (b) discharging another employee; (c) transferring any employee with more seniority than the pregnant employee; or (d) promoting an unqualified employee to perform the job. This amendment to the Maryland Fair Employment Practices Act permits accommodations that seemingly remove essential functions from the position, rather than simply permitting the employee an opportunity to perform the essential job functions in an alternative fashion.
Under the new requirement, employers will be required to post a notice in a conspicuous location (in the same places all other such workplace notices and posters are hung) and revise employee handbooks to include a section explaining a pregnant employee’s right to a reasonable accommodation under the new law. Employers should plan for these requirements in advance of the October 1 effective date of the amendment.
An employee is still required to engage in the interactive process with her employer as to the reasonable accommodation process, and an employer can require (and should) that the employee provide a health care provider’s certification as to the temporary disability that includes the dates the reasonable accommodation became medically advised, the probable duration of the accommodation, and an explanatory statement as to the medical advisability of the accommodation.