Appropriate Use of the Undue Hardship Defense Under the ADA

by Lana L. Rupprecht, Esq. - AVP Product Compliance

June 26, 2024

 

Undue hardship is one defense employers can assert when faced with a claim or lawsuit that falls under the Americans with Disabilities Act (ADA). As you likely already know, the ADA, requires an employer to provide a reasonable accommodation to a qualified individual with a disability unless doing so would pose an undue hardship.

But do you, as an employer, know exactly what this entails?

Under the ADA, undue hardship is defined as an "action requiring significant difficulty or expense" for the employer in light of the following factors:

  • 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

See, Equal Employment Opportunity Commission. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#undue

It can be difficult to identify undue hardship.

Consider this example: A crane operator, due to his disability, requests an adjustment in his work schedule. The operator asks to start work at 8 am rather than 7 am and finish an hour later in the evening. The crane operator works with three other employees who cannot perform their jobs without the crane operator. As a result, if the employer grants this requested accommodation, it would require the other three workers to adjust their hours, require the employer to find other work for them from 7 am to 8 am, or allow the workers to do nothing. Does this describe undue hardship?

Yes, it does, according to the Equal Employment Opportunity Commission (EEOC). In this factual scenario, the employer can deny the requested accommodation on the basis of undue hardship but should talk with the employee about other possible accommodations that do not pose an undue hardship.

See, Equal Employment Opportunity Commission. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA. Example 43A. Oct. 17, 2002.

Here's another example: A computer programmer works with a group of people to develop new software. There are certain tasks the entire group must perform together, but each person also has individual assignments. It is through habit that they have often worked together first thing in the morning.

The programmer, due to her disability, requests an adjustment in her work schedule so that she works from 10 am to 7 pm rather than 9 am to 6 pm. May the employer deny this request on the basis of undue hardship?

No, according to the EEOC. In this situation, the employer is able to adjust the hours. There is no evidence in this fact pattern that adjusting the hours would significantly disrupt business operations. Rather, it would simply change a habit or regular schedule.

When dealing with the undue hardship defense, always look at specific facts and circumstances. Conduct an individualized assessment, discuss it with the employee, and document the conversation. Create checklists for undue hardship cases and review each requirement carefully before denying an accommodation and before making employment decisions. Consider the cost of the accommodation along with the employer's size, financial resources, and the nature and structure of its operation.

Equal Employment Opportunity Commission. EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA. Example 43B. Oct. 17, 2002.

Also consider alternative accommodations that do not pose an undue hardship. Be creative. Talk with the employee and, if appropriate, the employee's medical provider to investigate all options, including other jobs. And always confer with your attorney when dealing with these issues. Even employers that do everything right can find themselves in court and endure costly litigation!

Reliance Matrix Can Help!

Reliance Matrix offers employers leave administration and accommodation services, including ADA accommodations. For more information, contact your Reliance Matrix account manager or send us a message to [email protected]. Product features and availability may vary by state. For more information, please contact your Reliance Matrix account manager, or reach us at [email protected].