[co-author: Andrew Will]
As lockdowns are lifted and employees return to the office, it is important for Maryland businesses to review their reasonable accommodation policies and practices. Notably, Maryland employers should be cognizant of the more stringent requirements imposed on them by the Fair Employment Practices Act (FEPA).
Maryland’s FEPA mirrors many protections provided by the Americans with Disabilities Act (ADA) at the federal level. For instance, employers must provide reasonable accommodations to qualified individuals with disabilities unless the accommodation would place an undue hardship on the employer. In this context, a qualified individual refers to one with a disability who—with or without reasonable accommodations—can perform the “essential functions” of the position held or desired by the individual. But Maryland law places an extra burden on employers when assessing reasonable accommodations.
In Maryland, a “reasonable accommodation” includes not only “reassigning or transferring an employee to a vacant position, light duty job, different work location, or other alternative employment opportunity,” but also “reanalyzing, with full consideration to the needs of the applicant or employee with a disability, job specifications, qualifications, or criteria to determine if they may be waived or modified.” Adkins v. Peninsula Reg’l Med. Ctr., 224 Md. App. 115, 136 (2015), aff’d, 448 Md. 197 (2016).
In other words, employers must be willing to consider reasonable modifications to their rules, policies, and practices if a modification could enable an individual to perform the essential function of the job. For example, Maryland law could require an employer to examine, or even waive, its internally developed educational requirements for certain positions. An employee with a disability and decades of experience may qualify for a position that traditionally requires a college degree—even if the applicant lacks one.
Whether or not the individual has applied to a certain position, the employer will almost always be in a better spot to determine if a suitable position exists. Accordingly, an employer’s refusal to examine their policies or practices may constitute a failure to provide an “individual assessment” under the law. The Maryland Court of Special Appeals noted that strict adherence to company policies “teeter[s] on the edge of per se disability discrimination.” Id. at 159. As the state transitions out of lockdown and employees return to the workplace, it is best for Maryland employers to keep this standard in mind.