Reasonable Accommodation of Applicants

An amendment to the Maryland Human Relations Act (MHRA) takes effect October 1, 2022, expressly requiring covered employers to provide reasonable accommodation to job applicants with disabilities unless doing so would cause an undue hardship on the operations of the employer. 

This amendment codifies a duty to accommodate inherent in the existing statute and regulations prohibiting discrimination against employees and job applicants with disabilities and syncs MHRA with the requirements of the Americans with Disabilities Act, as amended (ADA). 

The non-discrimination provisions under MHRA and ADA, including the duty to provide accommodation to individuals with disabilities, apply to employers with 15 or more employees.  

When Does the Duty to Accommodate Apply?

The duty to accommodate job applicants applies during all aspects of the recruitment and hiring process, from advertising to application procedures to interviewing, as well as to access to employment opportunities.   

The Code of Maryland Regulations (COMAR) provides the following examples of accommodations:

  • Providing applicants or employees with a disability with an opportunity to demonstrate their pertinent knowledge, skills, and abilities by testing methods adapted to their special circumstances if employment tests are used;
  • Making reasonable modifications in the covered entity's rules, policies, and practices if the modification may enable an applicant or employee with a disability to perform the essential functions of the job; and
  • Reanalyzing, with full consideration to the needs of the applicant or employee with a disability, job specifications, qualifications, or criteria to determine if they may be waived or modified.

COMAR (emphasis added). 

Reasonable accommodations may also include more immediate adjustments, such as modifying the application process for an individual whose disability prevents them from completing an online application, moving an interview to a wheelchair accessible space, or making other changes in process. 

Individualized Assessment

If a job applicant requests an accommodation during the hiring process, employers may need additional information to determine whether they can provide the accommodation requested.  Employers should speak to the individual directly about their needs to see what options are available for accommodating them.  Employers should not reject an accommodation request or insist on a “one size fits all” approach – each persons’ situation (medical condition, treatment, and abilities) will vary.  In fact, both MHRA and ADA require employers to conduct an individualized assessment to determine the appropriate accommodation – that is, to review the accommodation request on a case-by-case basis considering the needs of the individual applicant and the alternatives to existing procedures that may enable the applicant to participate effectively in the hiring process.  The employer is not required to provide the exact accommodation requested if there is an alternative, effective accommodation available.

In conducting the individualized assessment, employers should always adhere to state and federal restrictions on asking pre-employment medical questions.  For example, although both MHRA and ADA permit an employer to ask a job applicant whether they can perform the essential functions of the job with or without an accommodation, employers may not ask medical questions (including questions to establish the existence or severity of a disability) or require a medical examination before a conditional offer is made.

After a conditional job offer is made, but before a new hire starts working, the employer may require the new hire to answer medical questions or complete a medical examination, but only if all new hires in the same job are required to do so regardless of actual or perceived disability.  Any medical information obtained must be maintained confidentially in separate files and may only be used or disclosed as permitted by law.

Informing Job Applicants of Their Rights

For the duty to accommodate to have a practical effect, employers should (1) ensure their hiring practices include notice to job applicants of their right to request an accommodation during the hiring process and the procedure for doing so, (2) train hiring managers and human resources staff to lawfully respond to requests for accommodation, and (3) ensure that accommodations are provided to job applicants so long as they do not cause an undue hardship.

Job applicants have additional rights to notice.  Covered employers should be aware that the ADA requires all notices of laws prohibiting discrimination to be posted in a location accessible to job applicants and employees with disabilities that limit mobility.  Furthermore, these notices must be available in an accessible format for individuals whose disabilities limit their ability to see or read.  For example, notices may be recorded, adapted for electronic screen reading technologies, or read to the job applicant or employee. 

Postings that must be readily accessible to job applicants and employees include the “Equal Employment Opportunity Is the Law” poster, as well as posters regarding rights under the federal Family Medical Leave Act and the federal Employee Polygraph Protection Act.  Similarly, federal government contractors are required to post the Pay Transparency Non-Discrimination poster in a location where it can be readily seen by both job applicants and employees.  This means the required notices should be posted in a place where they may be readily seen by both job applicants and employees, or available to them in an accessible format. 

Information about state and federal notice posting requirements for Maryland employers may be found here.  In response to the shift to remote and/or hybrid work during the pandemic, the federal Department of Labor issued guidance regarding electronic notice posting in Field Assistance Bulletin No. 2020-7, located here; however, this guidance only applies to posting requirements for laws administered by the Department of Labor.

What Should Employers Do?

  • Review recruitment and hiring practices to ensure that job applicants are notified of their right to request an accommodation and the procedure for doing so.
  • Train hiring managers and human resources staff on the legal duty to provide reasonable accommodation to job applicants and employees with disabilities and the procedures for doing so.  Also, review the employer’s non-discrimination policy and MHRA/ADA compliance requirements with hiring managers and human resources staff to ensure that individuals with disabilities are given access to employment opportunities free of discrimination.
  • Review compliance with notice posting requirements.

Melissa Calhoon Jones is chair of the labor and employment group.  For more information about this statutory amendment and other employment concerns, please contact her.

This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.