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Thursday, January 15, 2009

A Look at 'Reasonable' Accommodation and "Undue Hardship"

Reasonable Accommodation And The Issue of "Undue Hardship"

An employer is not required to make an accommodation if it imposes an "undue hardship" on the employer. The term "undue hardship" is defined as an action requiring significant difficulty or expense - that is, an action that is unduly costly, extensive, substantial, or disruptive, or that will fundamentally alter the nature of the program.

In determining whether a particular acommodation would impose an undue hardship on the operation of the entity, a number of factors may need to be considered:

* the nature and cost of the accommodation need under the Americans with Disabilities Act (ADA),
* the overall financial resources of the facility involved in the provision of the reasonble accommodation including the number of persons employed, the effect on expenses and resources, and the impact of the accommodation,
* the overall financial resources of the employer including the overall size of the entity with respect to the number of its employees, and
* the type of operation of the covered entity, including the composition, structure, and functions of the work force.

What is apparent is that Congress intended that the weight given to each factor in making an undue hardship determination will vary depending on the facts of a particular situation and on both the nature and cost of the accommodation in relation to the employer's resources and operations.

If cost is an issue, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation. In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. In fact, the EEOC guidance on this subject suggests that to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with the disability if he or she will pay the difference.

An employer cannot claim undue hardship based on employees' or customers' fears or prejudices, or because providing a reasonable accommodation might have a negative impact on employee morale. Employers, however, may claim undue hardship where a reasonable accommodation would be unduly disruptive to other employees' ability to work.

Here are some other previously written posts regarding this subject that you may wish to read.

Frequently Asked Questions About Reasonable Accommodation

The Americans with Disabilities Act requires a covered employer to provide reasonable accommodation for individuals with disabilities, unless it would cause undue hardship. If you, as an employer, were suddenly faced with a request for reasonable accommodation from one of your employees, would you be prepared to respond correctly to this request?

It is quite likely that no two reasonable accommodation requests are the same - that each issue may present a "gray area" when it comes to what you are legally required to do. It is therefore a good idea to review your ADA policies (if you have any) and to have your HR Manager discuss with supervisors how best to respond should they receive a request. Failing to respond or responding inappropriately will create bigger problems.

To help you evaluate your preparedness, here are five of the most frequently asked questions (with answers) regarding reasonable accommodation and undue hardship.

1. Must the employee's request for reasonable accommodation be in writing? An employee must let his or her employer know that s/he needs an admustment or change at work for a reason related to a medical condition. Such requests do not need to be in writing. However, as an employer, you may choose to write a memorandum or letter confirming the request.
2. Must an employer provide the reasonable accommodation that the employee wants? An employer may choose among reasonable accommodations as long as the chosen accommodation is effective - that it removes the workplace barrier at issue. The employer may also offer alternative accommodation suggestions as long as each alternative removes the workplace barrier.
3. Is restructuring a current job considered a reasonable accommodation? Yes. Such restructuring may include (1) shifting responsibility to other employees for job tasks that an employee is uable to perform because of a disability and (2) altering when and/or how a job task is performed.
4. When an employee requests leave as a reasonable accommodation, can the employer provide accommodation that requires him/her to remain on the job instead? Yes. If the employer's proposed reasonable accommodation would be effective and eliminate the need for leave.
5. Does an employer have to reassign an employee who can no longer perform his/her job because of a disability to a vacant position? Yes, unless the employer can show that it would be an undue hardship. Other considerations also apply such as (1) if the employee "qualified" for the position, (2) it does not require other employees to be "bumped" and (3) the position is relatively equal is pay and status.

You might like to check out an employment law blogsite we've recently discovered. It's called Employment Law Bits. There's an excellent article on "Telemarketing: A Reasonable Accommodation?" that's very informative and addresses a growing issue in the workplace. This and other articles on the site are worth a read.

There's also a new employment law guidebook, written by Louis P. DiLorenzo and Sheldon I. London that lists 15 frequently asked questions (with answers) regarding reasonable accommodation and undue hardship. These questions and answers offer some terrific guidance on how to respond to employee requests.

Disability Discrimination: Good Intentions Can Produce Bad Law

Five Questions Regarding Reasonable Accommodation Employers Should Know The Answers To

In March 2007, we wrote a post listing five frequently asked questions about reasonable accommodation as it relates to the Americans with Disabilities Act. Here are five additional questions that every employer should know the answers to. Fortunately, I've included some answers as well.

Q. What must an emploer do after receiving a request for reasonable accommodation? A. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. The employer and the individual with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation. The employer may ask the individual questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed.

Q. How quickly must an employer respond to a request for reasonable accommodation? A. An employer should respond promptly to a request for reasonable accommodation. If the employer and the individual with a disability need to engage in an interactive process, it too should proceed as quickly as possible. Similarly, the employer should act promptly to provide the reasonable accommodation.

Q. Is providing leave necessitated by an employee's disability a form of reasonable accommodation? A. Yes, absent undue hardship, providing unpaid leave is a form of reasonable accommodation. However, an employer does not have to provide more paid leave than it provides to other employees.

Q. Is a modified or part-time schedule considered reasonable accommodation? A. Yes, absent undue hardship. A modified schedule may involve adjusting arrival or departure times, providing periodic breaks, altering when certain job tasks are performed, allowing an employee to use accrued paid leave, or providing additional unpaid leave.

Q. Does a reasonable accommodation include changing a person's supervisor? A. No. The ADA may, however, require that supervisory methods, such as the method of communicating assignments, be altered as a form of reasonable acommodation.

[The format for the above questions and answers is based upon information contained in the EEOC's Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA.]

ADA Mediation Program

Information and Technical Assistance on the Americans with Disabilities Act