The Need to Go Above and Beyond the ADA in Maryland: Disabled Applicants/Employees Need Individual Assessments

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By:  Adam E. Konstas, Esquire

In light of developments in Maryland employment discrimination law, employers are strongly encouraged to re-examine their reasonable accommodation policies and procedures.  When confronted with a reasonable accommodation request, employers should be mindful that Maryland’s Fair Employment Practices Act (“FEPA”) imposes some important obligations on employers beyond those required under the Americans with Disabilities Act (“ADA”).

Under the ADA, the federal law protecting disabled employees, as well as FEPA, Maryland’s law protecting disabled employees, employers are required to provide reasonable accommodations to qualified individuals with disabilities unless doing so would cause an undue hardship to the employer.  A qualified individual is an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.  However, FEPA imposes some additional requirements on Maryland employers.

Under FEPA it is an unlawful employment practice to “[f]ail to make an individualized assessment of a qualified individual’s  ability to perform the essential functions of a job, unless the qualification standard, employment test, or other selection criteria under which the individual was disqualified meet the requirements of a bona fide occupational qualification (BFOQ) reasonably necessary to the normal operation of the particular business or program.” COMAR 14.03.02.04(B)(3) (emphasis added).  A BFOQ is some standard or regulation which would prevent all or substantially all individuals with the particular disability from being able to perform the duties of the job in question or it would be impossible or highly impractical to determine such ability on an individual basis.  For instance, adequate vision would be a BFOQ of a bus driver and a blind individual could be prohibited from occupying the position of bus driver under this regulation. Notably, the ADA does not use the term “individualized assessment.”  It is in this requirement under Maryland law to conduct an “individualized assessment” where we see potential pitfalls for Maryland employers who might only follow the requirements of  the ADA. 

This Maryland regulation was carefully examined by both the Court of Special Appeals and the Court of Appeals in  Adkins v. Peninsula Reg’l Med. Ctr., 224 Md. App. 115, 145, 119 A.3d 146, 164 (2015), aff’d, 448 Md. 197, 137 A.3d 211 (2016).  The Court of Special Appeals compared the State “individualized assessment” to the Federal “interactive process” and concluded as follows:

In our view, the “individualized assessment” provides stronger protection for the employee than the federal “interactive process” regulation because it explicitly provides that failure to conduct an individualized assessment constitutes an unlawful employment practice. Indeed, this provision necessarily imposes a clear, unambiguous obligation on the employer, which, in turn, extends protection to the disabled employee.

Adkins, 224 Md. App. at 145.  Furthermore, the Court of Special Appeals noted that since the COMAR regulation refers to “a job” and not simply the job the employee held, the court did “not interpret the individualized assessment requirement to be constrained to mean the job previously held by the employee; instead, [the court] read it to require an employee-specific evaluation and a consideration of the essential functions of a job.” Id. (emphasis in original).  In considering reassignment to a vacant position, the Court of Special Appeals also explained that “although the employee may not have discovered and applied to the vacant position, the employer, upon receiving adequate notice of the need for an accommodation, is in a far better position than the employee to determine whether a position exists that the employee with a disability could perform.”  Id. at 148–49. 

The Court of Appeals affirmed, and further reasoned that an employer “does not satisfy its responsibility to conduct an individualized assessment to formulate an effective accommodation” by merely referring a returning employee to the employer’s website.  448 Md. at 221 n.16.  Moreover, the Court “agree[d] with the Court of Special Appeals that for a failure-to-accommodate claim, where the employee provided adequate notice that he or she has a disability and needs an accommodation, a formal application to a specific position is not necessary.”  Id. at 232.    It is clear from both opinions in Adkins that Maryland employers shoulder a heavier burden under FEPA than under the ADA.

These opinions, as well as the COMAR regulations, represent important developments in Maryland employment discrimination law.  In light of these developments, Maryland employers should re-examine their reasonable accommodation policies and procedures to account for COMAR 14.03.02.04.  When confronted with a request for reasonable accommodation from a qualified individual with a disability, Maryland employers should be mindful that FEPA imposes some important obligations on employers.  As FEPA claims brought before the Maryland Commission on Civil Rights and in State Court become more prevalent, distinctions between Maryland law and Federal law become even more vital to protecting against and, if necessary, defending such claims.

 

Adam E. Konstas is an Attorney in PK Law’s Education and Labor Group.  He represents local school boards, superintendents, private schools, colleges, and private sector employers before federal and state courts, and federal and state civil rights agencies on a variety of matters, including employment discrimination, collective bargaining, and sexual harassment. Mr. Konstas also assists private sector employers with the development and updating of employee handbooks, procedures and training.  Mr. Konstas can be reached at 410-339-5786 or akonstas@pklaw.com.

 

Protect Your Livelihood: Best Practices for Medical Licensing Board Complaints

By:  Bryan R. Ebert, Esquire

It is something that every health care provider fears: a patient files a complaint against you with the medical licensing board. Despite the anxiety that may come with receiving a letter of complaint, ignoring the matter will not make it go away. In fact, doing so will make matters worse. Although you may feel the urge to respond to the board on your own, DO NOT. This is a serious matter and must be managed/defended by an experienced attorney.

In the event you receive a letter of complaint from a state medical board, immediately contact a defense attorney with experience defending medical licensing board complaints. Doing so will allow you to understand the nature of the complaint, the deadlines, and what to do next. Do not delay contacting counsel. Time is of the essence and delayed response could severely impact your ability to refute the allegations.   

You must also contact your professional malpractice insurance carrier. Oftentimes, your insurance policy will contain coverage for the defense of medical licensing board complaints. Your insurance carrier may also assign an attorney if you do not have an established relationship.

Most importantly, don’t panic, let your attorney do the talking. Your attorney will guide you carefully through the process, respond to the complaint appropriately, and provide a thorough defense. When the time comes, your attorney will be available to advocate on your behalf and explain the nuances of what can be a complex process. Composure, diligence, patience, and preparation are all traits that will serve you in navigating the process with the assistance of experienced counsel. Just as one would seek an expert in a specialized area of medicine, you too should contact an expert in the event you are faced with defending a medical licensing board complaint.

 

PK Law’s Medical Malpractice Defense Team has extensive trial experience defending some of the most serious medical malpractice and personal injury claims in state and federal courts throughout the State of Maryland and the District of Columbia.  They are frequently retained on complex high-stakes disputes such as class action, wrongful death, catastrophic injury and surgical error claims.  The attorneys in the fourteen attorney team have a broad range of years of experience which allows the team to handle assigned matters not only effectively, but efficiently. For individual practitioners facing disciplinary and licensing proceedings before a Maryland administrative licensing board, the Team has extensive experience providing a pro-active and effective defense to the claims.  The Team also provides risk management advice to medical professionals, their practice groups, and health care facilities in the areas of credentialing and takes an active role in early resolution of matters where warranted.  For additional information contact a member of the Team or information@pklaw.com.

2018 Federal and Maryland Legislation Changes Regarding Estate and Gift Tax

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By:  Ashley Nelson-Raut

An abundance of tax legislation was signed into law in the final days of 2017. In terms of estate and gift tax, here is what individuals need to keep in mind:

Under the new law, which took effect on January 1, 2018, the following changes occurred on the Federal level:

  • Federal estate tax, gift tax, and generation-skipping transfer tax exemption amounts increased from $5,490,000 per person to $11,200,000 per person.
  • Married couples now have an exemption of $22,400,000.
  • These exemption amounts are scheduled to increase with the rate of inflation through the end of 2025.
  • On January 1, 2026, the federal estate tax, gift tax, and generation-skipping transfer tax exemption amounts will revert back to the 2017 amounts, adjusted to inflation levels.
  • The annual exclusion gift amount an individual may gift to another without incurring any gift tax consequences has increased from $14,000 to $15,000 per donee.
  • A married couple may make annual exclusion gifts of $30,000 to as many individuals as they choose.

While many changes are happening at the federal level, it is important to understand the estate tax laws for the state in which you reside. In Maryland, the following changes occurred:

  • If you die in 2018, with an estate with a gross value of more than $4 million, an estate tax return must be filed with the Comptroller of Maryland, and estate tax will be due.
  • Maryland legislature regarding inheritance tax remained intact, which imposes an inheritance tax on certain beneficiaries. The imposition of inheritance tax is dependent on the relationship of the person to which you are leaving money.

You may be thinking – how do these changes apply to me? Well, as a result of the change in the federal exemptions, individuals should consider the following:

  • Making gifts in order to bring his or her estate back to or below the Maryland exemption amount of $4 million. For example, an unmarried person with a $6 million estate could utilize the increased federal exemption to make gifts, free of tax, to bring his or her estate back to or below $4 million. This would avoid that individual’s estate from being subject to Maryland estate tax.
  • Governor Hogan recently announced an intent to freeze the Maryland estate tax exemption at or close to $5 million instead of increasing the exemption to match the federal exemption amount in 2019. This makes it even more imperative for individuals to plan accordingly for maximum tax savings.

            These are just some of the considerations that can be taken to save taxes. Again, by contacting PK Law, we can assist in estate planning and wealth preservation for individuals. For assistance with your estate planning and wealth preservation needs contact a PK Law Estate Planning or Wealth Preservation Attorney or contact information@pklaw.com

 

Ashley N. Nelson-Raut is an Associate in PK Law’s Wealth Preservation Group. Ashley graduated from the University of Baltimore School of Law, cum laude. While in law school, Ashley was an Associate Editor for the University of Baltimore Law Forum, a member of the Royal Shannonhouse III Honor Society, Historian of the Phi Delta Phi International Honor Society, and Law Scholar for ILS/Civil Procedure for Professor John Bessler. Prior to law school, Ashley attended Stevenson University, graduating summa cum laude, where she obtained her degree in Paralegal Studies.

 

This information is provided for general information only. None of the information provided herein should be construed as providing legal advice or a separate attorney client relationship. Applicability of the legal principles discussed may differ substantially in individual situations. You should not act upon the information presented herein without consulting an attorney of your choice about your particular situation. While PK Law has taken reasonable efforts to insure the accuracy of this material, the accuracy cannot be guaranteed and PK Law makes no warranties or representations as to its accuracy.

PK Law Member Pat Lambert Helping Women Leaders Through Executive Alliance

A recent article in I95 Business highlights PK Law Member, Patricia McHugh Lambert and Boys Hope Girls Hope of Baltimore Executive Director Karen Bond’s extensive involvement  in Executive Alliance. Executive Alliance is nonprofit organization whose mission is to accelerate the success and leadership of accomplished women by expanding their impact and influence through advocacy, education and mentorship. 

Read full article here:

http://beta.i95business.com/articles/428

PK Law’s Learning and Networking Event a Success!

Great evening at PK Law!  Happy to host the Learning and Networking Opportunity that included 5 minute presentations from a panel of local experts on various topics of interest to the local business community.  More events like this to come!