Title: Undue Hardship Prepared By John Patrick Evans, Certified Rehabilitation Counselor
1 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
2Undue 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.
3Undue 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.
4 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.
5 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.
6Undue 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
7Undue 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.
8Undue 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.
9 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.
10 Undue Hardship
- Comparison of the cost of an accommodation
to the employees salary is not a factor in
determining undue hardship. -
11 Undue Hardship
- A negative effect on morale, by itself, is
not sufficient to meet the undue hardship
standard.
12Undue 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.
13Undue 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.
14 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.
15Undue 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.