After a busy and eventful session, the Maryland General Assembly has convened for the year. Several new employment related bills were passed by both houses, and are expected to be signed into law by the Governor.
One new law is titled the Pregnancy Fairness Act (HB804/SB784). Its genesis lies in a recent Fourth Circuit case involving UPS driver Peggy Young, Young v. United Parcel Service, 707 F.3d 437 (4th Cir. 2012). The Fourth Circuit decided that the Pregnancy Discrimination Act did not require UPS to give work accommodations to pregnant workers equivalent to those given to other employees.
Ms. Young worked an early shift for UPS, unloading from the airport shuttle and delivering rush letters and parcels due by 8:30 a.m. Shipments using this more expensive type of delivery ordinarily consisted of letters and light packages.
Young had experienced difficulty becoming pregnant, but in 2006 took leave and had a successful in vitro procedure. Her medical provider advised her not to lift packages weighing more than 20 pounds, as a precaution. UPS refused to allow her to return to work with the restriction. UPS offered this kind of light duty for employees who had suffered on-the-job injuries, for employees entitled to accommodations under the Americans with Disabilities Act, and for employees who had lost their federal driving certification. Young unsuccessfully tried to convince UPS that her restriction would not interfere with her work; she could use a hand truck and other employees had offered to help with the rare heavy package. UPS would not budge, and Young went on a lengthy unpaid leave of absence, losing her health insurance benefits for the remainder of her pregnancy and delivery. She later returned to UPS.
Pregnancy is not a disability under the ADA, so UPS did not have to offer her an accommodation under that law, though it voluntarily did so for other categories of employees. Young has filed a petition for certiorari in the Supreme Court frames the issue as follows:
Whether, and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are “similar in their ability or inability to work.”
Maryland’s new law would require employers with at least 15 full time employees to give pregnant women accommodations unless the accommodation would impose an unreasonable hardship. An employee’s request for different hours, job duties, or work location, for example, must be considered; the law imposes an affirmative duty on the employer to explore accommodation possibilities with the employee. Further, if an employee requests a transfer to a less strenuous or less hazardous job during the pregnancy, the employer must grant the request if (1) it would do so for any other temporarily disabled employee, or (2) the woman’s health care provider so advises, and the employer is able to do so without displacing employees or creating a new job. Pregnant workers will be required to support their requests with medical certifications.
Often pregnant employees need simple accommodations, such as more frequent bathroom breaks, water or snacks at their work sites, and flexible hours for doctor’s visits. Moreover, the lifting requirements of many jobs overstate the typical daily tasks. For more serious medical restrictions, the law specifies that leave may be a reasonable accommodation. Nothing in the law requires the leave to be paid.
This new law is expected to ease the burden on the unemployment compensation and social services budgets.