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...
