Title I Technical Assistance Manual

3.9 The Undue Hardship Limitation

An employer is not required to make a reasonable accommodation if it would impose an undue hardship on the operation of the business. However, if a particular accommodation would impose an undue hardship, the employer must consider whether there are alternative accommodations that would not impose such hardship.

An undue hardship is an action that requires "significant difficulty or expense" in relation to the size of the employer, the resources available, and the nature of the operation.

Accordingly, whether a particular accommodation will impose an undue hardship must always be determined on a case-by-case basis. An accommodation that poses an undue hardship for one employer at a particular time may not pose an undue hardship for another employer, or even for the same employer at another time. In general, a larger employer would be expected to make accommodations requiring greater effort or expense than would be required of a smaller employer.

The concept of undue hardship includes any action that is:

• unduly costly;

• extensive;

• substantial;

• disruptive; or

• that would fundamentally alter the nature or operation of the business.

1. The nature and net cost of the accommodation needed.

The cost of an accommodation that is considered in determining undue hardship will be the actual cost to the employer. Specific Federal tax credits and tax deductions are available to employers for making accommodations required by the ADA, and there are also sources of funding to help pay for some accommodations. If an employer can receive tax credits or tax deductions or partial funding for an accommodation, only the net cost to the employer will be considered in a determination of undue hardship. (See Financial and Technical Assistance for Accommodations, 4.1 below);

2. The financial resources of the facility making the accommodation, the number of employees at this facility, and the effect on expenses and resources of the facility.

If an employer has only one facility, the cost and impact of the accommodation will be considered in relation to the effect on expenses and resources of that facility. However, if the facility is part of a larger entity that is covered by the ADA, factors 3. and 4. below also will be considered in determinations of undue hardship.

3. The overall financial resources, size, number of employees, and type and location of facilities of the entity covered by the ADA (if the facility involved in the accommodation is part of a larger entity).

4. The type of operation of the covered entity, 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 larger entity.

Factor 4. may include consideration of special types of employment operations, on a case-by-case basis, where providing a particular accommodation might be an undue hardship.

For example: It might "fundamentally alter" the nature of a temporary construction site or be unduly costly to make it physically accessible to an employee using a wheelchair, if the terrain and structures are constantly changing as construction progresses.

Factor 4. will be considered, along with factors 2. and 3., where a covered entity operates more than one facility, in order to assess the financial resources actually available to the facility making the accommodation, in light of the interrelationship between the facility and the covered entity. In some cases, consideration of the resources of the larger covered entity may not be justified, because the particular facility making the accommodation may not have access to those resources.

For example: A local, independently owned fast food franchise of a national company that receives no funding from that company may assert that it would be an undue hardship to provide an interpreter to enable a deaf applicant for store manager to participate in weekly staff meetings, because its own resources are inadequate and it has no access to resources of the national company. If the financial relationship between the national company and the local company is limited to payment of an annual franchise fee, only the resources of the local franchise would be considered in determining whether this accommodation would be an undue hardship. However, if the facility was part of a national company with financial and administrative control over all of its facilities, the resources of the company as a whole would be considered in making this determination.

5.The impact of the accommodation on the operation of the facility that is making the accommodation.

This may include the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business.

An employer may be able to show that providing a particular accommodation would be unduly disruptive to its other employees or to its ability to conduct business.

For example: If an employee with a disability requested that the thermostat in the workplace be raised to a certain level to accommodate her disability, and this level would make it uncomfortably hot for other employees or customers, the employer would not have to provide this accommodation. However, if there was an alternative accommodation that would not be an undue hardship, such as providing a space heater or placing the employee in a room with a separate thermostat, the employer would have to provide that accommodation.

For example: A person with a visual impairment who requires bright light to see well applies for a waitress position at an expensive nightclub. The club maintains dim lighting to create an intimate setting, and lowers its lights further during the floor show. If the job applicant requested bright lighting as an accommodation so that she could see to take orders, the employer could assert that this would be an undue hardship, because it would seriously affect the nature of its operation.

In determining whether an accommodation would cause an undue hardship, an employer may consider the impact of an accommodation on the ability of other employees to do their jobs. However, an employer may not claim undue hardship solely because providing an accommodation has a negative impact on the morale of other employees. Nor can an employer claim undue hardship because of "disruption" due to employees' fears about, or prejudices toward, a person's disability.

For example: If restructuring a job to accommodate an individual with a disability creates a heavier workload for other employees, this may constitute an undue hardship. But if other employees complain because an individual with a disability is allowed to take additional unpaid leave or to have a special flexible work schedule as a reasonable accommodation, such complaints or other negative reactions would not constitute an undue hardship.

For example: If an employee objects to working with an individual who has a disability because the employee feels uncomfortable or dislikes being near this person, this would not constitute an undue hardship. In this case, the problem is caused by the employee's fear or prejudice toward the individual's disability, not by an accommodation.

Problems of employee morale and employee negative attitudes should be addressed by the employer through appropriate consultations with supervisors and, where relevant, with union representatives. Employers also may wish to provide supervisors, managers and employees with "awareness" training, to help overcome fears and misconceptions about disabilities, and to inform them of the employer's obligations under the ADA.

Other Cost Issues

An employer may not claim undue hardship simply because the cost of an accommodation is high in relation to an employee's wage or salary. When enacting the ADA "factors" for determining undue hardship, Congress rejected a proposed amendment that would have established an undue hardship if an accommodation exceeded 10% of an individual's salary. This approach was rejected because it would unjustifiably harm lower-paid workers who need accommodations. Instead, Congress clearly established that the focus for determining undue hardship should be the resources available to the employer.

If an employer finds that the cost of an accommodation would impose an undue hardship and no funding is available from another source, an applicant or employee with a disability should be offered the option of paying for the portion of the cost that constitutes an undue hardship, or of providing the accommodation.

For example: If the cost of an assistive device is $2000, and an employer believes that it can demonstrate that spending more than $1500 would be an undue hardship, the individual with a disability should be offered the option of paying the additional $500. Or, if it would be an undue hardship for an employer to purchase brailling equipment for a blind applicant, the applicant should be offered the option of providing his own equipment (if there is no other effective accommodation that would not impose an undue hardship).

The terms of a collective bargaining agreement may be relevant in determining whether an accommodation would impose an undue hardship.

For example: A worker who has a deteriorated disc condition and cannot perform the heavy labor functions of a machinist job, requests reassignment to a vacant clerk's job as a reasonable accommodation. If the collective bargaining agreement has specific seniority lists and requirements governing each craft, it might be an undue hardship to reassign this person if others had seniority for the clerk's job.

However, since both the employer and the union are covered by the ADA's requirements, including the duty to provide a reasonable accommodation, the employer should consult with the union and try to work out an acceptable accommodation.

To avoid continuing conflicts between a collective bargaining agreement and the duty to provide reasonable accommodation, employers may find it helpful to seek a provision in agreements negotiated after the effective date of the ADA permitting the employer to take all actions necessary to comply with this law. (See Chapter VII.)