Undue Hardship Prepared By John Patrick Evans, Certified Rehabilitation Counselor

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Undue Hardship Prepared By John Patrick
Evans,Certified Rehabilitation Counselor
Corporate ConsultantWashington State Department
Social and Health ServicesDivision of Vocational
RehabilitationEvansJP_at_dshs.wa.gov2003
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Undue Hardship

• Undue hardship refers to any accommodation
  that would be unduly costly, extensive,
  substantial, or disruptive, or that would
  fundamentally alter the nature or operation of
  the business.

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Undue Hardship

• A covered entity is obligated to make
  reasonable accommodation to the known physical or
  mental limitations of an otherwise qualified
  individual with a disability unless to do so
  would impose an undue hardship on the
  operations of the covered entity's business.

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Undue Hardship
An individuals need for accommodation cannot
enter into the employers or covered entitys
decision regarding hiring, discharge, promotion,
or other similar employment decisions, unless
the accommodation would impose an undue hardship
on the employer.
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Undue Hardship

• An employer cannot simply assert that a
  needed accommodation will cause it undue hardship
  and thereupon be relieved of the duty to provide
  accommodation. Rather, an employer will have to
  present evidence and demonstrate that the
  accommodation will in fact, cause it undue
  hardship.

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Undue Hardship

• Undue Hardship is generally defined as
  requiring significant difficulty or expense.
  Criteria used to establish this defense
  include
• Size of business
• Size of budget
• Nature of its operation
• Number of employees
• Composition and structure of its work force
• Nature and cost of the accommodation

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Undue Hardship

• Factors to consider when determining undue
  hardship include
• (i) The nature and net cost of the accommodation
  needed taking into consideration the
  availability of tax credits and deductions,
  and/or outside funding
• (ii) The overall financial resources of the
  facility or facilities involved in the
  provision of the reasonable accommodation, the
  number of persons employed at such facility,
  and the effect on expenses and resources.

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Undue Hardship

• Factors to consider when determining
  undue hardship include
• (iii) The overall financial resources of the
  covered entity, the overall size of the
  business of the covered entity with
  respect to the number of its employees,
  and the number, type and location of its
  facilities
• (iv) The type of operation or operations of the
  covered entity, including the composition,
  structure and functions of the work force
  of such entity.

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Undue Hardship

• Factors to consider when determining
  undue hardship include
• (v) The geographical separateness and
  administrative or fiscal relationship of
  the facility or facilities in question to the
  covered entity
• (vi) The impact of the accommodation upon the
  operation of the facility, including the impact
  on the ability of other employees to perform
  their duties and the impact on the facilitys
  ability to conduct business.

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Undue Hardship

• Comparison of the cost of an accommodation
  to the employees salary is not a factor in
  determining undue hardship.

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Undue Hardship

• A negative effect on morale, by itself, is
  not sufficient to meet the undue hardship
  standard.

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Undue Hardship

• Terms of a collective bargaining
  agreement (CBA) may be relevant to determining
  if a proposed accommodation poses an undue
  hardship.
• Employers and unions may not raise a provision
  of a CBA as an absolute bar to providing a
  reasonable accommodation.
• If an employer determines that a particular
  accommodation raises a direct conflict with
  the CBA, s/he should consider whether
  there are any other possible effective
  accommodations that would not conflict with the
  CBA.

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Undue Hardship

• If an employer can show that the cost of the
  accommodation would impose an undue hardship, the
  covered entity would still be required to provide
  the accommodation if the funding is available
  from other sources e.g., state vocational
  rehabilitation agency, return-to-work program,
  agency revolving funds, or public and private
  resources.

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Undue Hardship

• If the cost of an accommodation
  would impose an undue hardship on the
  employer, the individual with a disability
  should be given the option of providing the
  accommodation or paying that portion of the
  cost which would constitute an undue hardship.

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Undue Hardship

• Written justification, signed by the employers
  appointing authority or designated personnel,
  must be provided for any decision not to provide
  a reasonable accommodation because of undue
  hardship.