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What Constitutes Undue Hardship for Employers?

January 2, 2018
 
 
When does accommodating an employee represent an undue hardship for an employer?
 
The phrase “undue hardship” appears in many laws (state and federal) and does not necessarily mean the same thing in each instance.
 
Any claim of undue hardship should be developed on a case-by-case basis grounded in the specific facts of that case. It should never be the default response.
 
The employer should make every reasonable effort to accommodate the employee’s request for an accommodation. Only if that does not work should the employer consider the undue hardship option. 
 
The duty is on the employer to justify a claim of undue hardship. The employer will be required to demonstrate in court or some other legal proceeding how it reached its conclusion.
 
Here is a summary of the most common circumstances in which the question of accommodation and undue hardship may arise.
 
Federal law (enforced by the Equal Employment Opportunity Commission, EEOC) 
 
Americans with Disabilities Act (ADA) 
 
The ADA requires employers of 15 or more people to make a reasonable accommodation for a qualified individual who can perform the essential functions of the job unless it would present an undue hardship on the employer. The ADA website includes a detailed discussion of what an employer must do to implement the reasonable accommodation aspects of the ADA. 
 
At the same time, the EEOC makes it clear that “generalized conclusions will not suffice to support a claim of undue hardship. Instead, undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense.” 
 
A determination of undue hardship under the ADA should be based on several factors, including:
  • 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 work force, 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. 
Religious Discrimination
 
U.S. Civil Rights law prohibits employers of 15 or more people from discriminating against individuals because of their religion (or lack of religious belief) in hiring, firing, or any other terms and conditions of employment. The law also prohibits job segregation based on religion, for example, assigning an employee to a non-customer contact position because of actual or feared customer preference.
 
The law requires employers to reasonably accommodate the religious beliefs and practices of applicants and employees, unless doing so would cause more than a minimal burden on the operation of the employer's business.
 
A reasonable religious accommodation is any adjustment to the work environment that will allow the employee to practice his or her religion. Flexible scheduling, voluntary shift substitutions or swaps, job reassignments, lateral transfers, and exceptions to dress or grooming rules are examples of accommodating an employee's religious beliefs.
 
An accommodation may cause undue hardship if it is:
  • costly;
  • compromises workplace safety; 
  • decreases workplace efficiency; 
  • infringes on the rights of other employees; 
  • requires other employees to do more than their share of potentially hazardous or burdensome work; or 
  • violates others' job rights established through a collective bargaining agreement or seniority system.
Massachusetts law (Massachusetts anti-discrimination laws enforced by MA Commission Against Discrimination, MCAD)
 
Religious Discrimination 
 
The Massachusetts anti-discrimination law (MGL 151B) makes it illegal “for an employer to impose upon an employee or prospective employee as a condition of obtaining or retaining employment any terms or conditions which would require the individual to violate or forego a practice required by his or her religion.”
 
While the law covers what an employee must do to request a religious accommodation, the employer may argue it presents an undue hardship if providing the accommodation would create:  
  • an inability to provide services required by federal or state law or regulation;
  • situations that compromise public health and safety;
  • an inability to transact business without the employee's presence, where his or her work cannot be performed by another employee who has substantially similar qualifications during the period of absence; or
  • a situation in which the employee's presence is needed to alleviate an emergency situation.
Handicapped discrimination (though generally referred to as disability, this is the word used in the Massachusetts statute) 
 
An accommodation is "reasonable" if it does not impose undue hardship on the employer. See the same MCAD link above for information about handicapped discrimination. In determining whether an accommodation would impose an undue hardship on the conduct of the employer's business, factors to be considered include:
  • the overall size of the employer's business with respect to the number of employees, number and type of facilities, and size of budget or available assets;
  • the type of the employer's operation, including the compensation and structure of the employer's work force; and
  • the nature and cost of the accommodation needed.
Medical marijuana 
 
The 2017 Barbuto decision by the Massachusetts Supreme Judicial Court requires employers of employees using prescribed medical marijuana to treat the employee as disabled, in the same manner it would treat any other user of lawfully prescribed medication. The decision notes that an employer may need to engage in an interactive dialogue with the person about a reasonable accommodation if the person possesses a medical marijuana identification card.
 
The court also recognizes that the employer may argue that an accommodation presents an undue hardship on the employer. The same three undue hardship standards used for handicapped discrimination would apply here as well. The court cites two examples to illustrate what it considers an undue hardship argument: 
  • It would impair the employee’s performance or pose an “unacceptably significant” safety risk to the public, the employee or fellow employees. (presumably future cases will decide what “unacceptably significant” means) 
  • Marijuana use could violate a company’s contractual or statutory obligations, thus jeopardizing its business.  
Veteran’s Day, Memorial Day 
 
A state law passed in 2016 provides that any employee who is a veteran and who desires to participate in a Veterans Day or Memorial Day exercise, parade or service be allowed and granted a leave of absence, with or without pay at the discretion of their employer, of sufficient time to participate in such services in their community of residence; provided, however, that employers with at least 50 employees shall grant the leave of absence on Veterans Day with pay if the employee provides reasonable notice for such leave.
 
“This section shall not apply to employees whose services are essential and critical to the public health or safety and determined to be essential to the safety and security of each such employer or property thereof.”
 
While not labelled undue hardship, this text is the basis on which an employer must make an argument for denying time off. Given the sparseness of the text, it is up to the employer to develop and justify its argument as to why it can’t give the employee the day off and for the courts to determine whether that is an appropriate decision by the employer. 
 
Pregnant Workers Fairness act (effective April1, 2018)
 
The law will make it illegal for an employer to deny a reasonable accommodation for an employee’s pregnancy or any condition related to the employee’s pregnancy including, but not limited to, lactation or the need to express breast milk for a nursing child if the employee requests such an accommodation; provided, however, that an employer may deny such an accommodation if the employer can demonstrate that the accommodation would impose an undue hardship on the employer’s program, enterprise or business.  
 
The law defines undue hardship to mean an action requiring significant difficulty or expense; provided, however, that the employer shall have the burden of proving undue hardship; provided further, that the following factors shall be considered: 
  • the nature and cost of the needed accommodation; 
  • the overall financial resources of the employer;
  • the overall size of the business of the employer with respect to the number of employees and the number, type and location of its facilities; and 
  • the effect on expenses and resources or any other impact of the accommodation on the employer’s program, enterprise or business.
Undue hardship is a tool that should be used carefully and on a case-by-case basis. The employer should carefully review the relevant language and decide if it can justify the undue hardship decision. The employer must also weigh how an undue hardship claim may impact a company’s culture.  
 
Please call the AIM Employer Hotline at 800-470-6277 if you have any questions about this article.
 
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