Articles Discussing General Topics In Maryland Labor & Employment Law.

In late September, a federal court in Maryland ruled that the state drug and alcohol testing statute does not permit employers to conduct breath alcohol tests.

Maryland Governor Martin O’Malley has signed into law the Reasonable Accommodations for Disabilities Due to Pregnancy Law. The law, which becomes effective on October 1, 2013, amends the Maryland Fair Employment Practices Act and creates new burdens for employers beyond those required under federal law. Maryland joins a growing number of states that mandate employers provide some form of accommodation to pregnant workers. (E.g., see California Issues Amended Pregnancy Regulations, Extends Coverage to Perceived Pregnancy.) Significantly, as illustrated by the new Maryland law, these state laws impose different and arguably greater obligations than such federal laws as the Pregnancy Discrimination Act (“PDA”) and the Americans with Disabilities Act (“ADA”), even after passage of the ADA Amendments Act (“ADAAA”).

Effective October 1, 2013, Maryland employers with 15 or more employees must provide their pregnant employees with certain reasonable accommodations beyond the requirements of the federal Americans with Disabilities Act (ADA) and Pregnancy Discrimination Act (PDA). The Reasonable Accommodations for Disabilities Due to Pregnancy Act (SB 784/HB 804) mandates that employers provide pregnant employees who are temporarily disabled with light duty assignments or transfers to less strenuous jobs, among other potential accommodations. Typically, these accommodations remove essential functions from a job, in contrast to traditional ADA accommodations which remove impediments or otherwise assist employees in performing the essential functions of their jobs.

Effective October 1, 2013, Maryland employers must provide employees with one day of unpaid leave to be used on the day the employee’s “immediate family member” is leaving for or returning from active military duty outside the United States as a member of the armed forces. “Immediate family member” is defined as the employee’s spouse (including a same-sex spouse), parent, stepparent, child, stepchild or sibling.

In May 2013, Governor Martin O’Malley signed three noteworthy statutes that will affect virtually every Maryland employer. Effective October 1, 2013, Maryland employers with 15 or more employees must provide their pregnant employees with certain reasonable accommodations beyond the requirements of the Americans with Disabilities Act (“ADA”) and the Pregnancy Discrimination Act (“PDA”). The “Reasonable Accommodations for Disabilities Due to Pregnancy Act” (SB 784/HB 804) mandates that employers provide pregnant employees who are temporarily disabled with light duty assignments or transfers to less strenuous jobs, among other accommodations. Typically, these accommodations remove essential functions from a position, rather than allowing the employee to perform the essential functions. The law also requires that employers post a notice “in a conspicuous location” and devote a section in employee handbooks that explains a pregnant employee’s right to a reasonable accommodation under the new law.

On November 27, 2012, in Scott v. Merck & Company, Inc.,1 the U.S. Court of Appeals for the Fourth Circuit reversed a jury verdict of more than $500,000 in favor of Jennifer Scott, a former Merck & Co., Inc. employee. The appeals court concluded that the trial court erred in permitting Scott to argue that the company’s non-retaliation policy included an enforceable promise not to terminate her employment. Specifically, the appeals court ruled that Scott could not reasonably have believed that the non-retaliation policy included a promise of continued employment, given the express at-will disclaimers contained in the employee handbook in which the non-retaliation policy appeared.

The 430th legislative session of the Maryland General Assembly resulted in several new laws and amendments to existing laws that affect employers. We summarize the more noteworthy legislation in this article. All laws are effective October 1, 2012, unless otherwise noted.

Maryland has become the first state to pass a bill, the User Name and Password Privacy Protection Act (SB 433/HB 964) (the “Act”), that bans employers from asking employees and applicants for social media passwords and login information. Specifically, the bill would prohibit an employer from taking or threatening any form of adverse action based on an employee’s or applicant’s refusal to provide a user name or password to a personal account accessed through a communications device. Governor Martin O’Malley likely will sign the bill into law in May 2012.

Under a bill passed by both houses of the Maryland General Assembly, employers in Maryland would be prohibited from demanding from employees and job applicants the usernames, passwords or other means to access personal accounts or service through an electronic communication device (e.g., computer and phone) for social media sites such as Facebook and LinkedIn. The bill, S.B. 433, introduced by Senator Ronald Young, passed unanimously in the Senate and by a vote of 128-10 in the House. It is awaiting the signature of Governor Martin O’Malley. It would become effective October 1, 2012.

On December 23, 2011, the U.S. Court of Appeals for the Fourth Circuit in Kunda v. C.R. Bard, Inc. held that employers in Maryland may have their employees execute employment agreements with a choice of law provision other than Maryland, so long as the other jurisdiction has a “substantial relationship” to the parties and the application of the law would not be contrary to a fundamental Maryland public policy. This case settles the issue, at least for now, of whether an employee who works in Maryland has a fundamental right to sue for wages under the Maryland Wage Payment and Collection Law (“MWPCL”) – generally a law favorable to employees.

In a dramatic change for Maryland employers, the state’s new Job Applicant Fairness Act will significantly limit their use of an individual’s credit history report for hiring and making other employment-related decisions. No previous state restrictions existed on employers’ obtaining and using this information. The Act was signed by the Governor on April 12 and will become effective on October 1, 2011.

Under Maryland’s Healthy Retail Employee Act, Maryland employers who operate “retail establishments” must provide non-exempt retail employees with break periods based on the length of the shifts the employees work. Employers in violation of the Act will face a fine.