In May 2013, Governor Martin O’Malley signed into law the “Reasonable Accommodations for Pregnant Workers Act,” which requires Maryland employers to provide reasonable accommodations to women suffering from pregnancy-related disabilities. See Md. Code Ann. State Gov’t §§20-601, et seq. The Act applies to all employers with at least fifteen employees for each working day in each of 20 or more calendar weeks. It also defines disabilities caused or contributed to by pregnancy or childbirth as “temporary disabilities.”
Under the Act, employers must provide reasonable accommodations for pregnancy-related disabilities, unless the employer would incur an undue hardship by doing so. An employer must explore all possible means of providing the reasonable accommodation, including:
- Changing an employee’s job duties or work hours;
- Relocating an employee’s work area;
- Providing mechanical or electrical aids; or
- Providing necessary leave.
The statute further requires that, where an employer has a policy of transferring temporarily disabled employees to a less strenuous or hazardous job, the employer must also provide that same type of transfer to a pregnant employee upon her request, and must allow her to remain in that position for the duration of her pregnancy. See Md. Code Ann. State Gov’t §20-609(e). Finally, employers must conspicuously post information related to a pregnant workers rights in the workplace, and must also include the information in their employee handbooks.
An employer need not accommodate an employee, however, if to do so would: (1) require the creation of additional employment which the employer otherwise would not have created; (2) cause another employee to be terminated; (3) necessitate transferring a more senior employee; or (4) involve promoting an unqualified employee. Moreover, employers are entitled require the same type of certification from the employee’s healthcare provider that would be sought in connection with any temporary disability.
Similar Laws Outside of Maryland
Maryland has joined ten other states which have enacted laws to protect the rights of pregnant employees. Specifically, Alaska, California, Connecticut, Hawaii, Illinois, Iowa, Louisiana, Michigan, Minnesota, and Texas have enacted laws requiring some form of reasonable accommodation for pregnant employees. See Reasonable Accommodations for Pregnant Employees, National Partnership for Women and Families, (May 2013), http://www.nationalpartnership.org/site/DocServer/State_Pregnancy_Laws.pdf?docID=12681; Mich. Comp. Laws Ann. § 37.2202 (West); Minn. Stat. Ann. §363A.08 (West); Iowa Code Ann. § 216.6 (West). Maryland’s Act, however—which is patterned after the California law—goes further than some states that only extend protections to public employees or those in the “line of duty,” such as firefighters and policewomen.
At the federal level, Maryland’s Act appears—on its surface—to duplicate protections for pregnant employees already afforded by the Pregnancy Discrimination Act (PDA) and the ADA Amendments Act of 2008 (ADAAA). The ADAAA extended ADA coverage to include employees with “temporary disabilities” comparable to medical conditions commonly experienced during pregnancy. Consequently, Congress effectively overruled court decisions that previously held that “transitory conditions” of relatively short duration did not rise to the level of disabilities under the ADA.
Although the ADAAA did not expressly refer to pregnancy-related conditions, such physical or mental impairments would presumably be protected as temporary disabilities. In that regard, the EEOC’s guidance on the ADAAA states that, even though pregnancy is not a disability, certain impairments caused by pregnancy (such as gestational diabetes) may qualify as such if they substantially limit a major life activity and, therefore, require reasonable accommodation. See Questions and Answers on the Final Rule Implementing the ADA Amendments Act of 2008, EEOC, http://www.eeoc.gov/laws/regulations/ada_qa_final_rule.cfm.
The Impetus for Maryland’s Legislative Change: Young v. United Parcel Service Inc.
The Maryland Legislature passed the Act soon after the highly publicized Fourth Circuit Court of Appeals ruling in Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013). That case centered on a pregnant UPS worker whose doctor restricted her from lifting more than 20 lbs. Id. at 440. UPS refused to accommodate that restriction, even though the company accommodated non-pregnant employees with similar restrictions caused by work-related injuries.
The Court narrowly construed the second clause of the federal PDA, which states that “women affected by pregnancy…shall be treated the same for all employment related purposes… as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. §2000e(k). The Court held that the plaintiff could not prove a PDA claim because she was unable to identify employees who were not pregnant, but that still received an accommodation for a temporary lifting restriction due to a medical condition that arose outside of the job. The Court also found that UPS’s application of its policy had not been motivated by any discriminatory animus.
In reaching this conclusion, the Court reasoned that to hold otherwise—to allow a pregnant employee to succeed on a PDA claim without making such a showing—would bestow more favorable treatment on pregnant employees than their male counterparts who had been disabled by transitory medical conditions that were not protected by the ADA. Id. at 447-448. That result would be inconsistent with the PDA, which does not contemplate such “favored nation” status.
Following the Court of Appeals ruling, the plaintiff in Young filed a petition for certiorari, which—as of today—is still pending. In that Petition, the plaintiff argues that the Fourth Circuit disregarded the legislative history behind the PDA and ignored EEOC and Supreme Court interpretations of the plain statutory text of the PDA. See Young v. United Parcel Service, Inc., 2013 EL 1462041 (U.S. Apr. 8, 2013) (No. 12-1226), at *5. The Petition also asserts that a Supreme Court ruling is necessary to resolve the circuit split on the correct interpretation of the PDA. Specifically, the Sixth and Tenth Circuits have interpreted the PDA more liberally, requiring only that pregnant women be compared with all other temporarily disabled employees for the comparative purpose of the PDA. The Fifth, Seventh, and Eleventh Circuits, however, are generally in accord with the Fourth Circuit ruling. See id. at *18-20.
The Limits of the Young Decision
Going forward, it is important to recognize that the limited relevance of the Young decision, which involved a claim based on facts that predated the January 2008 effective date of the ADAAA. Subsequently, upon the enactment of the ADAAA, federal protections were expanded when the definition of “disability” was revised to include the type of transitory conditions suffered by pregnant employees. For that reason, the holding in the Young case is probably of little or no practical consequence.
Yet, in reacting to the Young decision and enacting the pregnancy discrimination law, Maryland’s legislature has created two categories of
temporarily disabled employees with different levels of protection. Maryland’s Act requires employers to provide reasonable accommodations to pregnant workers, but does not impose the same obligation for non-pregnant employees diagnosed with temporary disabilities. Moreover, Title 20 has not been amended to bring it in line with the ADAAA. As a consequence, Maryland statutory law does not currently protect temporarily disabled non-pregnant employees.
The anomaly suggests that rather than passing the Act, a better solution may have been to amend Title 20 to make it consistent with federal law, accomplishing the same purposes as passing the Act. Until the inconsistency is resolved, however, temporarily disabled non-pregnant employees will lack the same access to Maryland courts that is currently enjoyed by pregnant employees. Rather, they will be restricted to filing an action in federal court under the ADA/ADAAA. As plaintiffs’ attorneys may generally prefer litigating in state court, this difference is not purely academic.
For more information, please contact J. Nicole Windsor at Bowie Jensen, LLC.