Question

When trying to determine what is a reasonable accommodation under the Americans with Disabilities Act (ADA), I am not sure exactly how and when to tell the employee that the accommodation request is impossible for us to meet. What constitutes an undue hardship under the ADA? Are there specific situations in which an employer may use the undue hardship argument?

Answer

There are several laws that include an “undue hardship” component, including the Americans with Disabilities Act (ADA). Another is the religious practices protection contained in Title VII of the Civil Rights Act.  Both laws apply to employers with 15 or more employees. While the need for reasonable accommodation is much more frequent under the ADA, a recent Supreme Court decision strengthening religious practice accommodation may make that topic a more active issue for some employers.

Under the ADA, eligible employees may request reasonable accommodation for their mental or physical disability to enable them to work in your workplace. Once that request is received, an employer must either grant the accommodation or enter into an interactive dialogue with the employee to determine what reasonable accommodation may be provided or whether the request presents an undue hardship.

An employee does not need to use the term “reasonable accommodation” to set this process in motion.  If, for example, an employee tells his manager that he is having trouble performing his job duties due to a medical issue, that puts the employer on notice that there may be a need for accommodation.  The employer must then begin the interactive dialogue.

A reasonable accommodation is defined as “a modification or adjustment to a job, the work environment, or the way things are usually done during the hiring process.” Typically, reasonable accommodations are focused around:

• Adjustments to a job application process.
• Modifications to the work environment or changes to customary policies/practices that enable a qualified individual to perform the essential functions of the job.
• Adaptations that allow an employee with a disability to enjoy equal benefits and privileges of employment in the same way as similarly placed employees without a disability.
• Employers may not refuse to hire a prospective employee or terminate an employee solely because their disability-related limitations prevent them from performing non-essential job tasks.

If an employer believes that a particular accommodation would be an undue hardship, the employer must try to identify another accommodation that will not pose such a hardship.

Also, if the cost of the accommodation would impose an undue hardship on the employer, the individual with a disability should be given the option of paying that portion of the cost that would constitute an undue hardship.

While the intent of the law is to provide opportunities for as many disabled workers as possible to obtain or remain in employment, it is ultimately the employer’s decision as to what is the appropriate reasonable accommodation for the situation.

If the employee disagrees with the employer’s decision, the employee may file a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and/or the Massachusetts Commission against Discrimination (MCAD).

When an employer reaches the point at which it believes that it is unable to provide reasonable accommodation, the employer is permitted to state that any possible accommodation would impose an “undue hardship” on the operation of its business.

The ADA defines “undue hardship” as an “action requiring significant difficulty or expense” when considering several factors including:

• The nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation.
• The difficulty or expense for the employer to provide the accommodation,
• Whether providing the accommodation involves waiving essential job duties, and
• Whether granting the accommodation would fundamentally alter the nature or operations of the business.

There is no one-size-fits-all application of the undue hardship standard. It is determined on a case-by-case basis. Generally, the larger the entity, the greater the expectation that the facility will be able to use its resources (financial, administrative, logistical) to make accommodations requiring greater effort or expense than would be required of a smaller employer with fewer resources.

Final thought

Any employer responding to a request for reasonable accommodation under the ADA must be sure to thoroughly document all steps in the interactive dialogue process in case the employer determines it cannot make accommodations for that individual.

More information can be found available at these websites:

EEOC Guidance on Accommodation and Hardship

EEOC provides definitions, frequently asked questions and resources. https://www.eeoc.gov/publications/ada-your-responsibilities-employer

MCAD provides an overview and downloadable detailed guidelines on disability discrimination on employment.

AIM members interested in discussing ADA or any other human resources matter may call the helpline at 1-800-470-6277.