End of Maryland Legislative Session Brings New Law Addressing Employers' Obligation to Pregnant Employees

Date: May 22, 2013

The Maryland legislative session typically includes the introduction of a number of bills affecting the relationship between employers and their employees.  This article notes several such bills that were considered – but failed to pass – in the most recent session and examines a newly enacted law creating additional obligations for employers with pregnant employees.

On April 8, 2013, at the stroke of midnight, Maryland's General Assembly adjourned for the year.  All in all, Maryland employers fared fairly well through this legislative session.  The General Assembly considered, but ultimately did not enact, bills that would have: required Maryland employers to provide paid sick leave (HB 735);, increased the minimum wage from $7.25 to $10.00 per hour over a three year period (SB683); allowed for an award of attorney's fees in a broad array of cases (HB 130); and allowed individuals who remain unemployed following separation from employment to void a covenant not to compete signed with their former employer (SB51).

There was, however, one piece of legislation that passed late in the session that will be of concern for Maryland employers.  . The new law, which takes effect on October 1, 2013, requires Maryland employers with 15 or more employees to treat an employee's pregnancy in much the same manner as they treat a disability covered by the Americans with Disabilities Act and provide the pregnant employee with an accommodation, unless doing so would impose an undue hardship on the employer.  At the heart of this new legislation is the requirement that employers provide the same type of employment policies and practices to pregnant employees that they provide to other employees for other types of conditions.  This provision was the direct result of a Fourth Circuit Court of Appeals decision (Young v. United Parcel Service, Inc. 4th Cir. No. 11-2078, January 9, 2013) that found that, even though the employer had provided various types of short term leave to employees who were injured on the job or satisfied other criteria, the employer was not required to provide the same benefit to a pregnant employee.

Under the new legislation, if an employee requests a reasonable accommodation, then the employer “shall explore” with the employee all possible means of providing the reasonable accommodation, including (1) changing the employee's job duties, (2) changing the employee's work hours, (3) relocating the employee's work area, (4) providing mechanical or electrical aids, (5) transferring the employee to a less strenuous or less hazardous position, or (6) providing leave.

If an employee requests a transfer to a less strenuous or less hazardous position as a reasonable accommodation, the employer shall transfer the employee for a period of time up to the duration of the employee's pregnancy if:

  • the employer has a policy, practice or collective bargaining agreement requiring or authorizing the transfer of a temporarily disabled employee to a less strenuous or less hazardous position or
  • the employee's health care provider recommends the transfer and the employer can provide the reasonable accommodation by transferring the employee without:
    • creating additional employment that the employer would not otherwise have created, 
    • discharging any employee, 
    • transferring any employee with more seniority than the employee requesting reasonable accommodation, or 
    • promoting an employee who is not qualified to perform the job.

An employer may require an employee to provide a certification from the employee's health care provider concerning the medical advisability of a reasonable accommodation to the same extent a certification is required for other temporary disabilities.  That certification form must include the date the reasonable accommodation became medically advisable, the probable duration of the reasonable accommodation and an explanatory statement as to the medical advisability of the reasonable accommodation.

Covered Maryland employers must also post in a conspicuous location and include in any employee handbook information concerning an employee's rights to reasonable accommodations and leave for a disability caused or contributed to by pregnancy.  As with other employment statutes, the new legislation expressly provides that an employer may not interfere with, restrain, or deny the exercise of any right provided under the law.

This legislation was signed into law by Governor O'Malley on May 16, 2013, and will take effect October 1, 2013.

Takeaway for employers:  Although many of the employment-related bills introduced in the most recent legislative session did not become law, the newly enacted pregnancy-related statute will require new action by Maryland employers to ensure that internal procedures are in place to comply with the law and properly review and respond to requests for accommodation by pregnant employees.