United States: Legislation Roundup: Maryland General Assembly Mandates That Employers Provide "Light Duty" To Pregnant Disabled Women, Leave For Military Family Members, And Creates A New Wage Law

Last Updated: May 17 2013
Article by Joseph P. Harkins and Steven Kaplan

In May 2013, Governor Martin O'Malley signed three noteworthy statutes that will affect virtually every Maryland employer. Effective October 1, 2013, Maryland employers with 15 or more employees must provide their pregnant employees with certain reasonable accommodations beyond the requirements of the Americans with Disabilities Act ("ADA") and the Pregnancy Discrimination Act ("PDA"). The "Reasonable Accommodations for Disabilities Due to Pregnancy Act" (SB 784/HB 804) mandates that employers provide pregnant employees who are temporarily disabled with light duty assignments or transfers to less strenuous jobs, among other accommodations. Typically, these accommodations remove essential functions from a position, rather than allowing the employee to perform the essential functions. The law also requires that employers post a notice "in a conspicuous location" and devote a section in employee handbooks that explains a pregnant employee's right to a reasonable accommodation under the new law.

Under the "Leave – Deployment of Family Members in the Armed Services Act" (SB 12), Maryland employers must provide their employees who have worked at least 1,250 hours during the previous 12 months with the opportunity to take unpaid leave, if they so choose, to spend time with their spouse, parent, stepparent, child, stepchild, or sibling on the day he or she leaves for, or returns from, active duty outside the United States.

Also, the Maryland General Assembly created a new law entitled "Lien for Unpaid Wages Act" (SB 758/HB 1130), which creates an expedited mechanism for employees to pursue certain wage claims. Effective October 1, 2013, this law provides that an employee can establish a lien for alleged unpaid wages, serve a notice of the lien on the employer, and place the affirmative burden on the employer to file within 30 days a "complaint" in circuit court setting forth its defenses. According to the law, the court must schedule an evidentiary hearing within 45 days.

The Reasonable Accommodations for Disabilities Due to Pregnancy Act

The impetus to amend the Maryland Fair Employment Practices Act ("FEPA")1 to include additional accommodations for pregnant employees was a recent decision issued by the United States Court of Appeals for the Fourth Circuit. In Young v. UPS,2 the Fourth Circuit held that employers are not required under the ADA or PDA to provide pregnant employees with light duty assignments so long as the employer puts them on an equal footing with non-pregnant employees.

In this case, the plaintiff worked for UPS as a part-time driver. Although all drivers were required to be able to lift items weighing up to 70 pounds, plaintiff's duties generally included carrying lighter letters and packages. After plaintiff became pregnant, she asked for a brief leave of absence. Shortly thereafter, plaintiff submitted a doctor's note with a recommendation that she not lift more than 20 pounds, and she asked for an accommodation to work light duty. UPS refused these requests and would not allow her to return to work because lifting more than 20 pounds was an essential function of plaintiff's job.

Notably, UPS, as do many employers, accommodated on-the-job injuries with light duty assignments. However, UPS did not offer light duty assignments to any employee, male or female, who had a medical condition unrelated to a work injury. Plaintiff argued that the PDA requires employers, like UPS, to provide pregnant employees light duty work if it provides similar work to other employees in other circumstances. Both the U.S. District Court of Maryland and the Fourth Circuit held UPS's policy was lawful under the ADA and PDA because it was "gender-neutral" and employers are not required to provide light duty assignments to disabled employees under the ADA.

As a result of Young v. UPS, Maryland's General Assembly amended Maryland's FEPA to require an employer to provide certain reasonable accommodations to pregnant employees who provide notice to their employers of a temporary disability, even if the accommodation removes essential functions of the position. The statute offers no explanation for when a pregnant employee would be deemed "temporarily disabled" under the law, although this determination presumably hinges on medical documentation.

In particular, the law requires an employer to consider the following accommodations for a pregnant employee:

  • Changing the employee's job duties;
  • Changing the employee's work hours;
  • Relocating the employee's work area;
  • Providing mechanical or electrical aids;
  • Transferring the employee to a less strenuous or less hazardous position; or
  • Providing leave.

If an employee requests a transfer to a less strenuous or less hazardous position as a reasonable accommodation, the employer must honor the request if: (1) the employer has a policy, practice, or a collective bargaining agreement requiring or authorizing the transfer of other temporarily disabled employees (such as a policy authorizing special accommodations for employees who suffer on-the-job injuries); or (2) the employee's health care provider advises the transfer and the employer can transfer the employee without (a) creating an additional position; (b) discharging the employee; (c) transferring any employee with more seniority than the employee requesting the accommodation; or (d) promoting any employee who is not qualified to perform the job.

The law does not change an employee's obligation to engage in the interactive process. Moreover, the law states that an employee must provide an employer with a health care provider's certification that includes the date the reasonable accommodation became medically advisable, the probable duration of the accommodation, and an explanatory statement as to the medical advisability of the accommodation.

Significantly, the amendment to Maryland's FEPA also states that an employer must post in a conspicuous location – and include in any employee handbook – information concerning an employee's rights to a reasonable accommodation under the new law.

Leave – Deployment of Family Members in the Armed Services Act

As noted above, under the Leave – Deployment of Family Members in the Armed Services Act, employees who have worked for an employer for one year and at least 1,250 hours during the previous 12 months have the opportunity to take unpaid leave, if they so choose, to spend time with their immediate family member (i.e., spouse, parent, stepparent, child, stepchild, or sibling) on the day he or she leaves for, or returns from, active duty outside the United States. In other words, an employer may not require an employee to use sick, vacation, or other "paid time off" leave when taking leave under this new law.

The Act defines "Employer" as a person or entity that (1) employs 50 or more individuals; and (2) is engaged in a business, industry, profession, trade, or other enterprise in the state. Because "Employer" is not defined as employing 50 or more individuals in the state, this law seems to apply to even one employee who is employed in Maryland, and who otherwise meets the one year and 1,250 hour requirement. Judicial and regulatory interpretation in this regard will be important.

An employer, however, may require an employee requesting leave to submit "proof to the employer verifying that the leave is being taken" for this purpose. Notably, this law does not require an employee to provide advance notice of the leave.

Lien for Unpaid Wages Act

The Lien for Unpaid Wages Act, modeled after the Maryland Contract Lien Act, provides a mechanism for an employee to file a lien for unpaid wages on an employer's real or personal property before a lawsuit is filed in court. In addition, the law creates an expedited process by which a court must determine whether to issue an order establishing a lien for unpaid wages within 45 days after the date on which the complaint is filed. Given this timetable, it is unclear whether the parties would exchange written discovery before the evidentiary hearing and whether the parties would brief the legal issues after the hearing.

Under the new wage law, an employer must file a complaint setting forth its defenses in the circuit court for the county where the real or personal property is located within 30 days of service of the notice of lien. The complaint must include an affidavit containing a statement of facts that support any defenses raised. The complaint should also request an evidentiary hearing. The employee, however, still must prove his or her case based on a preponderance of the evidence. If the employee succeeds, the employee is entitled to court costs and reasonable attorney's fees. In addition, if the employer fails to file the complaint within 30 days after notice is served, the lien for unpaid wages is formally established. Because the statute does not offer an employer any additional defenses after the lien is imposed, meeting the 30-day filing deadline is crucial.

Although the term "wages" is not defined, the law expressly excludes "commissions." Presumably, a wage under this law will include all other compensation due to an employee for employment, as defined by the Maryland Wage Payment and Collection Law.3 Such compensation includes a bonus, fringe benefit, overtime, or any other remuneration promised for service. Commissions were likely excluded from the law because whether an employee has actually "earned" the commission under an agreement or the employer's commission policy is a fact-intensive analysis. Because alleged "off the clock" work and misclassification also involve complicated legal issues and a similar factual analysis, it is a mystery how a court will be able to resolve these issues in such an expedited fashion.

The Maryland Department of Labor, Licensing, and Regulation will soon adopt regulations to establish the content of the Notice, Complaint, and Wage Lien Statement.

What this Means for Maryland Employers

Employers in Maryland should educate themselves, or speak with their employment counsel, regarding the amendment to the Maryland Fair Employment Practices Act which mandates that employers provide "light duty" assignments, among other new potential accommodations, to pregnant employees who are temporarily disabled. Moreover, employers should consult with their employment counsel concerning the new "posting" and "handbook" requirements by which employees are informed of these new requirements and to what extent an employer should modify its leave policies to ensure adherence to the Leave – Deployment of Family Members in the Armed Services Act.

Employers in Maryland should also review the Lien for Unpaid Wages Act and monitor the Department of Labor, Licensing, and Regulation's website for developments on supporting regulations. If an employer is served with Notice of a Lien for unpaid wages, it should immediately contact employment counsel because of the short timeframe to respond and to prepare for a hearing.

Footnotes

1. Md. Code Ann., Art. 20 et seq.

2 707 F.3d 437 (4th Cir. Jan. 9, 2013).

3 Md. Code Ann., Labor & Employment, §3-501, et. seq.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Joseph P. Harkins
Steven Kaplan
Similar Articles
Relevancy Powered by MondaqAI
Littler Mendelson
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Littler Mendelson
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions