| Bar Bulletin |
June,
2003 |
| June Focus Article |
|
Maryland Announces New Disability
Guidelines for Workplace, Public Places
By Lee D. Hoshall
Maryland employers and
places of public accommodation recently became subject to new regulations
spelling out their duties under State law to provide equal opportunities
to persons with physical or mental disabilities. In a comprehensive
revision of regulations originally promulgated more than 20 years ago, the
Maryland Commission on Human Relations has provided detailed interpretive
guidelines to guide businesses in complying with the nondiscrimination
mandates of the Maryland Human Relations Code, Article 49B of the
Annotated Code of Maryland. The new regulations cover diverse subjects
ranging from pre-employment medical examinations and job performance to
wheelchair lifts and access to historical buildings. Similar to federal
regulations under the Americans with Disabilities Act (ADA), the
regulations also reflect differences in State law.
The regulations adopt a
definition of “disability” similar to language in federal law. A person is
considered disabled if he or she has a physical or mental impairment that
substantially limits one or more major life activities. In addition,
persons who are perceived as having such an impairment, whether it
actually exists or not, and those with a record or past history of
such an impairment are likewise covered by the statute. In a departure
from federal law, the determination of whether a person is disabled is
made without regard to the mitigating effects of remedial appliances or
devices. For example, an amputee who walks with the aid of a prosthetic
limb or a hearing-impaired person who uses a hearing aid would be covered
by the statute if they are substantially limited in a major life activity
without the use of such an appliance or device.
Employment
The regulations apply
to all aspects of the employment relationship. Entities are barred from
limiting, segregating or classifying job applicants or employees in any
way that adversely affects their employment opportunities or status on the
basis of disability. Significantly, the regulations define an entity’s
failure to make an individualized assessment of a disabled person’s
ability to perform essential job functions as an unlawful employment
practice. Discrimination is prohibited when it is carried out directly by
a covered entity or indirectly, as when the entity participates in a
contractual relationship or other arrangement.
Reasonable
accommodation to a person’s known physical or mental limitations is
required whenever it is necessary for the performance of essential job
functions. Examples include making structural changes to buildings,
providing equipment or devices, job restructuring, reassigning or
transferring employees to vacant or alternative positions, modifying work
schedules, telecommuting from home, using paid or unpaid medical leave and
waiving a “no pet” requirement to allow use of a service animal.
Employer defenses are
specifically addressed. An accommodation need not be made if it would
impose an “undue hardship” on the business or program. Other defenses
permit an entity to take discriminatory actions otherwise prohibited by
the statute. The “future hazard” defense is similar to the ADA’s “direct
threat” defense. The covered entity has the burden of showing to a
reasonable probability that the disability renders the person unable to
perform the job duties without endangering health or safety. The Bona Fide
Occupational Qualification (BFOQ) exception is a class-based defense with
no analogue in the ADA. Establishing a BFOQ requires proof that all or
substantially all persons with the particular disability would be unable
to perform the job duties. Alternatively, the entity can show that it is
impossible or highly impractical to determine on an individual basis
whether the disability precludes job performance. The BFOQ and “future
hazard” defenses are narrow exceptions to the duty of nondiscrimination.
Public Accommodations
Designing regulations
for every conceivable public accommodations situation is a formidable
task. Public accommodations include everything from restaurants and
theaters to museums and doctors’ offices. Like the ADA, the Commission’s
regulations broadly prohibit five basic types of practices: denial of
participation, unequal participation, providing a separate benefit, using
eligibility criteria that screen out persons with disabilities and
imposing a disability surcharge.
In this context,
reasonable accommodation often requires structural changes to buildings to
ensure wheelchair access and use. Unlike the ADA, Article 49B does not
distinguish between existing and newly constructed facilities. The
regulations require that all covered facilities be reasonably accessible
unless the business can show undue hardship or expense.
The core accommodation
requirement is an accessible route from parking spaces and passenger
loading zones to the facility entrance and connecting all public elements
and spaces within the facility. Ramps, wheelchair lifts or elevators may
be necessary to ensure access to upper or lower levels or floors. The ADA
Accessibility Guidelines (ADAAG) serve as a compliance “safe harbor.” A
new or existing facility that complies with ADAAG requirements for new
construction automatically meets or exceeds the State requirements.
Historical Buildings and Facilities
The regulations
comprehensively address the subject of wheelchair access to historical
sites that are places of public accommodation. Qualified historical
buildings or facilities are not exempt from access requirements but the
nature and scope of such access may be limited. A “qualified” facility is
one that is listed in or eligible for listing in national or state
registers of historic places.
A public accommodation
is not required to take any action that would threaten or destroy its
historical significance. Modifications are not required if they would
damage, permanently alter or require the removal of historically
significant features, materials or spaces. Changes must be in scale and
visually compatible with the historic property. The regulations require
the Commission staff to identify the historically significant aspects of a
property and to consult with appropriate historical preservation officials
or agencies in determining access requirements.
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