February HR Tip

By: Adam E. Konstas, Esquire

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”).

1. Under the ADA and FEPA employers are required to provide reasonable accommodations to qualified individuals with disabilities unless doing so would cause an undue hardship to the employer.
2. 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).
3. In conducting the “individualized assessment” an employer should not only consider the essential functions of the job the employee previously held but should consider the essential functions of other positions for potential reassignment.
4. Employers are considered to be in a far better position than the employee to determine whether another position exists that the employee with a disability could perform. Simply referring an employee to the employer’s job posting website is often not enough, and a formal application by the employee is generally not necessary.