In a recent case, a Maryland Federal court permitted a plaintiff to proceed to trial on her failure to accommodate claim under Maryland’s Fair Employment Practices Act (MFEPA), finding that under Maryland law the employer was required to perform an individualized assessment in order to determine whether the employee – a qualified individual with a disability – was able to perform the essential functions of any available job, not just the job in which she had worked.

Brief Background of the Case

Townes v. Md. Dep’t of Juvenile Svcs. involved a state government agency employee diagnosed with bipolar disorder whose psychiatrist recommended that she transfer to a different position requiring less travel so that she could continue to work.  Deposition testimony indicated that there were some vacant positions requiring less travel to which Townes could have transferred.  Furthermore, after having reviewed the list of job vacancies at the time the psychiatrist requested a reasonable accommodation for Townes, Townes’ psychiatrist opined that Townes could have performed the functions of several of those positions, including one available in Baltimore, where Townes resides.

It’s About Whether the Individual Can Perform the Essential Functions of A Job, Not the Job He or She Currently Occupies

The important question the Townes case presented was whether a jury could conclude that the employer performed the reasonable accommodation individualized assessment required under MFEPA of Townes’ ability to perform the duties required of a job, not necessarily the job she occupied at the time of the accommodation request.

In concluding that the employer needed to look at “a” job and not “the” job Townes held, the court opined that the Maryland statute’s requirement of an “individualized assessment” is akin to the interactive process requirement under the Americans with Disabilities Act (ADA), further relied on the Maryland Court of Appeals case Peninsula Reg’l Med. Ctr. v. Adkins, which broadly interpreted the phrase “the job in question” found in the regulations interpreting MFEPA.

Under that regulation (COMAR 14.03.02.02(b)(10)), a “qualified individual with a disability” is an individual with a disability who “[w]ith or without reasonable accommodation can perform the essential functions of the job in question.”  In fact, one of the applicable regulations (COMAR 14.03.02.04(B)(3) specifically requires that the employer considering a reasonable accommodation request “make an individualized assessement of [the employee’s] ability to perform the essential functions of a job.” The Adkins court had rejected the notion that “the job in question” means the job held by the employee at the time of her request for accommodation.  It further opined that in order to truly conduct an individualized assessment, the employer must focus on the employee’s ability to perform the essential functions of other jobs that are available and for which the employee is otherwise qualified.

The District Court in Townes also pointed out that Maryland law expressly includes reassignment to a vacant position as an example of a reasonable accommodation.  COMAR 14.03.02.05(B)(5).  This fact, together with the Adkins decision, bolstered the court’s conclusion that the agency was required to look to other open positions that the employee could have filled. Because the employer did not look beyond the job actually held by the employee, the court reasoned that a jury could find that the employer failed to provide an individual assessment and failed to reasonably accommodate her.

Takeaway

This case and the Adkins case demonstrate that courts in Maryland will interpret the MFEPA’s requirements as substantially similar to those found in Title I of the ADA and the Rehabilitation Act and consistent with those statutes’ remedial purposes.  Upon learning of an employee’s request for accommodation, Maryland employers should immediately engage such employee in a good-faith dialogue (individualized assessment) to determine how they might accommodate the request in the employee’s current position or through transfer to an available position for which the employee is qualified.

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Photo of Donald Davis Donald Davis

Don Davis is a Practice Group Associate in the firm’s Washington DC office. He has represented clients in a wide variety of cases that have touched upon a number of issues including employment contracts, wage and hour disputes, employment discrimination, disability accommodations, wrongful discharge claims, family and medical leave, defamation, and whistleblower rights.