By Brandi O. Brown, J.D.
Supplementing the shortage of case law interpreting the Maryland Fair Employment Practices Act, Maryland's highest court explained that the definition of "qualified individual with a disability" in Section 14.03.02.02(B) of the Code of Maryland Regulations includes workers who can perform the essential functions of a reassignment position, with or without accommodation. This is so even if they are unable to perform the essential functions of their current job. The court affirmed a decision of the Court of Special Appeals, which reversed the trial court's grant of summary judgment in the employer's favor (Peninsula Regional Medical Center v. Adkins
, May 26, 2016, Adkins, S.).
In 2010, the plaintiff's position as an assistant in Inventory Control was cut and she transferred to a storekeeper job. A few months later, she was diagnosed as having a tear in the joint of her left hip as well as a hip deformation. She obtained FMLA leave for surgery. When her 12-week leave was set to expire on November 17, 2011, she was informed that as long as she returned by that date she would be returned to her job or one that was equivalent.
In the meantime, she began applying for other positions at the medical center where she worked. However, after surgery, her pain intensified and her physicians revised her recovery time up to six months to a year. She returned to work on November 7 but was in so much pain that management agreed she should not return. She was told to start looking at job postings. Although her doctor indicated she could return to work with a "light duty" restriction, she was told her unit could not accommodate the restrictions. After her surgery, she applied for several different positions but was not hired for any of them.
Extended leave and discharge.
On the date her 12-week leave was set to expire, she was granted an additional 14 weeks of leave. She was encouraged to apply for open positions, but not given information about any specific jobs. She received another "light duty" note from her doctor, which she gave to her employer. When her extended leave ended, she was fired. She applied for more positions thereafter but was not hired. She filed suit alleging discrimination based on an actual disability, discrimination based on being regarded as disabled, and failure to accommodate. Summary judgment was granted in favor of the medical center and the Court of Special Appeals reversed the lower court's judgment on the actual disability claim and reasonable accommodation claim. The employer appealed.
The first question for review considered by the court was whether the definition of "qualified individual with a disability" in the FEPA includes employees who are able to perform the essential functions of a reassignment position, with or without accommodation, even if they are unable to perform the essential functions of their current role. A "concomitant issue," and the one that the court dealt with first, was whether the employer was obligated to conduct an individualized assessment of a worker who is unable to perform the essential functions of her position.
Knowledge of disability.
The court found the employee provided sufficient information to conclude that the employer knew about her disability and wish for accommodation. While on FMLA leave, and after her surgery, she met with her supervisor with updates and provided notes from her surgeon regarding her ability to return to work. On the date she attempted to return, she met with a nurse in the employee health office and told her she was in pain and that she felt she had restrictions. She asked, "What am I supposed to do[?] I have to work." She also informed the nurse that she was no longer capable of performing the essential duties of her prior position because of her injury, telling her that she could not walk all day long or for long periods or do "repeated stuff." She reported increased pain with squatting, lifting, and bending.
And need for accommodation.
A reasonable jury could also conclude that she communicated a desire to be accommodated by submitting her physician's reports requiring "light duty" and work that was sedentary and requiring minimal lifting, walking, or standing. Moreover, the nurse used similar language in her response to the employee, telling her that her unit could not "accommodate her restrictions." That language, the court explained, gave rise to a reasonable inference the employer knew of her need for accommodation and that it viewed her delivery of the physician's report as an attempt to describe the accommodation she needed. There was also evidence she sought consideration for positions she could do with her restrictions.
Individualized assessment requirement not so limited.
With that out of the way, the court rejected the employer's argument that the state law only required an individualized assessment for employees able to perform the essential functions of the position they already held. The employer's witness testimony indicated that they saw no need for such an assessment because they "never concluded that Ms. Adkins was disabled." On this basis, a jury could conclude that the employer failed to conduct an individualized assessment. There were also material questions of fact regarding at least one of the reassignment positions identified by the employee—an inventory control coordinator position. Although the employer contended that the position was a physically demanding one, there were disputes about who actually did some of the physically demanding work cited by the employer.
The court also rejected the employer's argument that its provision of extended leave to the employee constituted a reasonable accommodation. Provision of such leave as a temporary accommodation, the court explained, "does not permanently relieve an employer of the duty to accommodate." With regard to the disability discrimination claim based on the employee's termination, the court also concluded that a factfinder could infer that her discharge was because of her disability.