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In light of developments in Maryland employment discrimination law, employers are strongly encouraged to re-examine their reasonable accommodation policies and procedures. When confronted with a reasonable accommodation request, employers should be mindful that Maryland’s Fair Employment Practices Act (“FEPA”) imposes some important obligations on employers beyond those required under the Americans with Disabilities Act (“ADA”).
Under the ADA, the federal law protecting disabled employees, as well as FEPA, Maryland’s law protecting disabled employees, employers are required to provide reasonable accommodations to qualified individuals with disabilities unless doing so would cause an undue hardship to the employer. A qualified individual is an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. However, FEPA imposes some additional requirements on Maryland employers.
Under FEPA it is an unlawful employment practice to “[f]ail to make an individualized assessment of a qualified individual’s ability to perform the essential functions of a job, unless the qualification standard, employment test, or other selection criteria under which the individual was disqualified meet the requirements of a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the particular business or program.” COMAR 14.03.02.04(B)(3) (emphasis added). A BFOQ is some standard or regulation which would prevent all or substantially all individuals with the particular disability from being able to perform the duties of the job in question or it would be impossible or highly impractical to determine such ability on an individual basis. For instance, adequate vision would be a BFOQ of a bus driver and a blind individual could be prohibited from occupying the position of bus driver under this regulation. Notably, the ADA does not use the term “individualized assessment.” It is in this requirement under Maryland law to conduct an “individualized assessment” where we see potential pitfalls for Maryland employers who might only follow the requirements of the ADA.
This Maryland regulation was carefully examined by both the Court of Special Appeals and the Court of Appeals in Adkins v. Peninsula Reg’l Med. Ctr., 224 Md. App. 115, 145, 119 A.3d 146, 164 (2015), aff’d, 448 Md. 197, 137 A.3d 211 (2016). The Court of Special Appeals compared the State “individualized assessment” to the Federal “interactive process” and concluded as follows:
In our view, the “individualized assessment” provides stronger protection for the employee than the federal “interactive process” regulation because it explicitly provides that failure to conduct an individualized assessment constitutes an unlawful employment practice. Indeed, this provision necessarily imposes a clear, unambiguous obligation on the employer, which, in turn, extends protection to the disabled employee.
Adkins, 224 Md. App. at 145. Furthermore, the Court of Special Appeals noted that since the COMAR regulation refers to “a job” and not simply the job the employee held, the court did “not interpret the individualized assessment requirement to be constrained to mean the job previously held by the employee; instead, [the court] read it to require an employee-specific evaluation and a consideration of the essential functions of a job.” Id. (emphasis in original). In considering reassignment to a vacant position, the Court of Special Appeals also explained that “although the employee may not have discovered and applied to the vacant position, the employer, upon receiving adequate notice of the need for an accommodation, is in a far better position than the employee to determine whether a position exists that the employee with a disability could perform.” Id. at 148–49.
The Court of Appeals affirmed, and further reasoned that an employer “does not satisfy its responsibility to conduct an individualized assessment to formulate an effective accommodation” by merely referring a returning employee to the employer’s website. 448 Md. at 221 n.16. Moreover, the Court “agree[d] with the Court of Special Appeals that for a failure-to-accommodate claim, where the employee provided adequate notice that he or she has a disability and needs an accommodation, a formal application to a specific position is not necessary.” Id. at 232. It is clear from both opinions in Adkins that Maryland employers shoulder a heavier burden under FEPA than under the ADA.
These opinions, as well as the COMAR regulations, represent important developments in Maryland employment discrimination law. In light of these developments, Maryland employers should re-examine their reasonable accommodation policies and procedures to account for COMAR 14.03.02.04. When confronted with a request for reasonable accommodation from a qualified individual with a disability, Maryland employers should be mindful that FEPA imposes some important obligations on employers. As FEPA claims brought before the Maryland Commission on Civil Rights and in State Court become more prevalent, distinctions between Maryland law and Federal law become even more vital to protecting against and, if necessary, defending such claims.
Adam E. Konstas is an Attorney in PK Law’s Education and Labor Group. He represents local school boards, superintendents, private schools, colleges, and private sector employers before federal and state courts, and federal and state civil rights agencies on a variety of matters, including employment discrimination, collective bargaining, and sexual harassment. Mr. Konstas also assists private sector employers with the development and updating of employee handbooks, procedures and training. Mr. Konstas can be reached at 410-339-5786 or firstname.lastname@example.org.