From the desk of Matthew McCord, M.S., CRC, Consultant – Mobility Team
A question that arises here at JAN is whether or not any given accommodation would amount to an undue hardship. This is a reasonable question for people to raise when exploring accommodation solutions. Under the Americans with Disabilities Act (ADA), when an accommodation would cause such a burden that it would amount to an undue hardship to provide, then an employer is not obligated to provide that particular accommodation. Determining undue hardship largely depends on fact-specific details that must be evaluated on a case-by-case basis. As such, JAN staff are not empowered to determine if providing accommodations will amount to undue hardship for any given employer. Employers have the responsibility to make this determination.
JAN can offer guidance that may be helpful to an employer trying to determine if a particular accommodation will rise to the level of an undue hardship. Using enforcement guidance provided by the Equal Employment Opportunity Commission (EEOC), we can discuss various factors to be considered when determining undue hardship. Each of these factors can be broken down into simple terms to be discussed individually.
Before we begin, we need to discuss what the EEOC has said on the topic of undue hardship. In the Undue Hardship Issues section of the EEOC document titled, Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, it states:
An employer does not have to provide a reasonable accommodation that would cause an "undue hardship" to the employer. Generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. A determination of undue hardship should be based on several factors, including:
- the nature and cost of the accommodation needed;
- the overall financial resources of the facility making the reasonable accommodation; the number of persons employed at this facility; the effect on expenses and resources of the facility;
- the overall financial resources, size, number of employees, and type and location of facilities of the employer (if the facility involved in the reasonable accommodation is part of a larger entity);
- the type of operation of the employer, including the structure and functions of the workforce, the geographic separateness, and the administrative or fiscal relationship of the facility involved in making the accommodation to the employer;
- the impact of the accommodation on the operation of the facility.
With this guidance in mind, let’s deconstruct the information into more manageable chunks and discuss what each part means.
The Nature and Cost of the Accommodation Needed
In considering the nature and cost of the accommodation needed, the employer is evaluating the type of accommodation requested and the actual cost to the employer to provide it. For instance, if the individual is requesting an ergonomic chair for their workstation, then the nature of the accommodation is a piece of equipment that is being requested as an accommodation for a disability-related reason. The employer then may assess the actual cost associated with either purchasing a new chair or providing a chair the employer already has available that meets the employee’s accommodation needs. As another example, if an individual is requesting to be permitted some flexibility in their scheduled start time, then the nature of the accommodation is that the individual is requesting a modified schedule as an accommodation. In this case, there is no direct cost involved, but the actual costs to the employer may be related to the employer’s ability to cover the flexed time with another worker to ensure the needs of the business are met.
The Overall Financial Resources of the Facility
In the event that the accommodation being requested does involve an actual cost, then the employer may need to consider that cost in relation to the employer’s ability to absorb that cost. It is important to note that this factor is divided into two separate bullet points. One requires considering the resources of the facility making the accommodation, and the other requires considering the overall resources of the employer in the event that the employer has multiple facilities. These factors take into account situations where an accommodation would amount to an undue hardship if the resources of a single facility were considered in isolation, but not when the overall resources of the employer as a whole are brought into the picture. These factors become relevant in many situations. For example, when a university department does not have the resources to provide a requested accommodation, but there are resources available within the university as a whole to facilitate it.
The Type of Operation of the Employer
This factor requires employers to consider how compatible the accommodation would be with the nature of the employer’s business. This often comes up for employers that operate in a unique way. As an example, consider a request to make a construction site accessible to an individual who uses a wheelchair. If the worksite is constantly changing as the construction project progresses, there may not be a viable method of ensuring that an individual who uses a wheelchair will have safe and reliable access to all areas of the site that they may need to access to perform the essential job functions of their job. In this situation, it may be feasible to consider other methods of enabling the individual to perform their job, like allowing the use of a remote controlled drone outfitted with a camera to enable the employee to inspect areas of the site that cannot be physically reached or having another worker access the required areas and use a cell phone to video conference with the inspecting employee.
The Impact of the Accommodation on the Operation of the Facility
When considering this factor, employers should review how providing the accommodation will impact how other employees perform their jobs or how the company conducts business. This review is concerned with determining whether the accommodation will be unduly disruptive to employees or the operation of the business. For instance, restructuring a job as an accommodation that amounts to co-workers being given significantly heavier workloads can be a factor to consider. However, co-workers complaining about an individual receiving an accommodation because of “special treatment” would not be a factor that should be considered for undue hardship. This is because there is a direct impact on others’ ability to complete tasks in the first situation, while the second is simply a negative reaction the co-workers have to the idea of accommodations being provided.
It is vital to remember that determining undue hardship is a process that focuses on individualized details that are often specific to the situation at hand. Due to this, it will not be adequate to base an undue hardship determination on a gut feeling, assumption, or idea that does not have objective evidence to back it up – generalized conclusions will not suffice. Undue hardship can protect employers from providing accommodations that are too burdensome, but is also an extremely high threshold to meet under the ADA. For more information about undue hardship and the ADA, see the EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.