New laws affecting reasonable accommodations for pregnant employees, leave for employees with immediate family in the armed forces, and wage payment and responses to lien notifications take effect on October 1.

In May 2013, Maryland Governor Martin O'Malley signed into law three new employment acts that will have important consequences for Maryland employers moving forward. The new measures include the following:

• The Reasonable Accommodations for Disabilities Due to Pregnancy Act, 2013 ML Ch. 547 (S.B. 784), approved on May 16, 2013, requires Maryland employers to provide accommodations for disabilities caused or contributed to by pregnancy.^[1]

• The Deployment of Family Members in the Armed Services Act, 2013 ML Ch. 163 (S.B. 12), approved on May 2, 2013, requires Maryland employers with 50 or more employees to allow qualified employees to take leave from work on the day that an immediate family member is leaving for, or returning from, active duty outside the United States.^[2]

• The Lien for Unpaid Wages Act, 2013 ML Ch. 540 (S.B. 758), approved on May 16, 2013, establishes a mechanism by which employees may place a wage lien on employers' real or personal property located in Maryland for unpaid wages.^[3]

Maryland's new employment laws will take effect on October 1, 2013, giving employers time to make required changes to existing policies and procedures.

The legislature considered, but ultimately did not enact, more expansive bills that would have required Maryland employers to provide paid sick leave, increased the minimum wage from $7.25 to $10.00 per hour over a three-year period, and allowed individuals who remain unemployed following separation from employment to void not-to-compete covenants signed with their former employers.

New Accommodation Requirements for Pregnant Employees

Maryland's Reasonable Accommodations for Disabilities Due to Pregnancy Act is a direct response to Young v. United Parcel Service, Inc.,^[4] in which the U.S. Court of Appeals for the Fourth Circuit found that an employer did not violate the Americans with Disabilities Act, as amended (ADA), or the federal Pregnancy Discrimination Act in refusing to provide light duty assignments to pregnant employees. In that case, the employer provided light duty assignments only to a select set of employees, including those who were injured on the job, those with an ADA-covered disability, and those who had lost their Department of Transportation (DOT) certifications. The Fourth Circuit affirmed the legality of this policy as "pregnancy-blind," explaining that an employer need not provide an "accommodation or light duty work to a pregnant worker whose restrictions arise from her (off-the-job) pregnancy while denying any such accommodation to an employee unable to lift as a result of an off-the-job [temporary] injury or illness."^[5]

While the Young ruling may surprise employers, it is well established that pregnancy alone is not considered a disability under the ADA or similar state or local laws. As such, an employer has no obligation to accommodate an employee because she is pregnant, unless there are pregnancy-related complications that would be considered a disability under the ADA or a pregnant employee otherwise has a medical condition that meets the definition of "disability" under the ADA. Moreover, under the ADA, an employer need only make available reasonable accommodations that enable a disabled employee to perform the essential functions of his or her job. There is no general requirement that the employer eliminate an essential job function as an accommodation. That will soon change, at least in Maryland, with respect to pregnant employees.

The Reasonable Accommodations for Disabilities Due to Pregnancy Act requires Maryland employers to provide accommodations for employees who give notice of a disability "caused or contributed to by pregnancy," so long as the accommodations do not impose an undue hardship on the employer. Notably, this Maryland act requires employers to accommodate pregnant employees by changing job duties, which could arguably require the employer to remove essential functions of the job.

Specifically, a Maryland employer with 15 or more employees must explore "all possible means of providing the reasonable accommodation" for a disability caused or contributed to by an employee's pregnancy, including the following:

• Changing the employee's job duties and/or work hours

• Relocating the employee's work area

• Providing mechanical or electrical aids

• Providing leave

• Transferring the employee to a less strenuous or less hazardous position for a period of time "up to the duration of the employee's pregnancy" if either of the following occurs:

  • The employer has a policy, practice, or collective bargaining agreement requiring or authorizing the transfer of other temporarily disabled employees.

  • The employee's healthcare provider advises the transfer, and the transfer can be accomplished without (i) creating additional employment that the employer would not otherwise have created, (ii) discharging any employee, (iii) transferring any employee with more seniority than the pregnant employee, or (iv) promoting any employee who is not qualified to perform the job.

Before October 1, Maryland employers must post a notice in a conspicuous location and include in any employee handbook information concerning all rights conferred to pregnant employees under this act.

New Leave for Employees with an Immediate Family Member Serving Abroad

The Deployment of Family Members in the Armed Forces Act requires Maryland employers to allow employees to take leave from work on the day that an immediate family member is leaving for, or returning from, active duty outside the United States. An immediate family member is defined under the act as a "spouse, parent, stepparent, child, stepchild, or sibling."

Under this new law, employers may not require employees to use compensatory, sick, or vacation leave days. Employers may, however, require employees requesting leave to submit proof verifying that the leave is being taken in accordance with the act.

Only employers that employ 50 or more individuals and engage in business in Maryland are covered under the act—a relatively high threshold that will eliminate the act's coverage for many small businesses. Eligibility is limited to full-time or part-time employees who have worked for their employers for the last 12 months and for at least 1,250 hours during those 12 months.

New Lien for Unpaid Wages

The Lien for Unpaid Wages Act establishes a mechanism by which employees may place a wage lien on employers' real or personal property located in Maryland for unpaid wages. This act further emphasizes the importance of properly paying all wages to which employees are entitled, including any final paychecks.

To place a lien on a Maryland employer, an employee or the Maryland Commissioner of Labor must simply (1) notify the employer of the wages claimed and the property against which the lien for unpaid wages is sought; (2) provide the employer with 30 days to dispute the lien by filing a complaint; and (3) record the lien as established if the lien is (a) undisputed or (b) disputed and a Maryland circuit court issues an order establishing the lien. Given this rapid time frame, Maryland employers should immediately consult an attorney if they receive notice that a lien has been filed by a current or former employee.

Maryland employers should be aware that a contract between an employee and an employer may not waive the right to seek the establishment of a lien for unpaid wages. This act aids Maryland employees in recovering wages when damages through a lawsuit would otherwise be difficult to collect.

Implications

In the wake of these three new employee-friendly acts, Maryland employers should review and update their policies and practices on reasonable accommodations for eligible pregnant employees, leave for employees with immediate family in the armed forces, and wage payment and responses to any lien notifications. Employers must take steps now to be in compliance when these laws go into effect on October 1.

_{[1]. View the Reasonable Accommodations for Disabilities Due to Pregnancy Act here.}

_{[2]. View the Deployment of Family Members in the Armed Services Acthere.}

_{[3]. View the Lien for Unpaid Wages Act here.}

_{[4]. Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013),available here.}

_{[5]. Id. at 448.}