“But We Can’t Do That” — Documenting Undue Hardship Can Help Protect Employers Against ADA Claims

When a disabled employee requests an ADA accommodation, employers should have an interactive discussion to determine what accommodations might work. And a big part of that discussion is asking the employee to suggest possible accommodations.

But if an employee suggests an accommodation that would cause the employer an “undue hardship,” the employer can reject that accommodation. A requested accommodation that creates a hassle or minor burden is not an undue hardship. Instead, an accommodation creates an undue hardship if it subjects the employer to significant difficulty or expense. Courts take into account an individualized assessment of not only the nature and cost of the requested accommodation but also the employer’s resources and the potential impact of granting the requested accommodation on the employer’s operations. This is a high bar to meet, because it requires the employer to identify specific and significant difficulties or expenses the suggested accommodation would create.

Often, employers reject requested accommodations based on a sense that the suggested accommodation “just would not work.” But because the ADA requires a particular showing of the difficulty or expense the requested accommodation would create, the employer should carefully document and justify the underlying reasons why the accommodation “would not work.”  Failing to identify these underlying reasons—and to document them—can increase the chance that an employer has failed to carry its burden to show that an undue hardship existed, and so can have significant consequences later on if there is litigation.

For example, a court denied an employer summary judgment in part because it had failed to document its reasons why the employee’s request for “at least three more months” of leave after FMLA leave was exhausted would be an undue hardship. Bernhard v. Brown & Brown of Lehigh Valley, Inc., 720 F. Supp. 2d 694, 702–03 (E.D. Pa. 2010). Similarly, a court rejected the argument that 29 absences in 18 months and an absence for an entire additional month created an undue hardship because the employer failed to offer evidence backing up how these absences impacted the employer’s operations. Pearson v. Univ. Hosps. of Cleveland, Inc., No. 1:06-cv-1974, 2008 WL 1808797, at *8 (N.D. Ohio. Apr. 21, 2008).

And the EEOC has recently begun to focus on the lack of undue hardship documentation in numerous internal rulings on charges brought by federal employees against federal agencies. (In the past, such rulings have hinted at the EEOC’s future enforcement priorities in actions against private employers.) For example, one agency denied an employee’s request to work from home for additional days each week because it said that that would hurt productivity. But the EEOC found the accommodation denial to be improper because the agency failed to document how additional work from home would hurt the employee’s productivity. Doria R. v. Nat’l Sci. Found., EEOC Appeal No. 0120152916 (Nov. 9, 2017). Similarly, the EEOC rejected a denial of additional work from home when the employee’s managers argued that her job required face-to-face interactions and there would not be enough remote work to keep her busy because—again—the agency failed to document how there would be insufficient remote work to keep her busy. Alejandrina L. v. Dep’t of State, EEOC Appeal No. 0120152145 (Nov. 16, 2017).

So what should an employer do? One example comes from a case where the employee suggested that the employer move her workstation to the first floor of its building to accommodate post-surgery problems with her ankle. The court granted the employer summary judgment because the employer documented specific reasons why her requested move would create an undue hardship: 1) the filing cabinets her position as an Accounts Receivable Clerk required her to use were on the second floor, 2) the first floor lacked a safe, where she was expected to store customer payments, 3) the first floor lacked the ledger books where she was expected to securely log customer payments, and 4) the first floor had customers and non-administrative employees present, making it an unsecure location for handling financial records. Frumusa v. Zweigle’s, Inc., 688 F. Supp. 2d 176, 191–92 (W.D.N.Y. 2010).

The reasons why a requested accommodation would be an undue hardship may seem or feel obvious, at least to management, at the time the employer denies the accommodation. But courts and the EEOC are often suspicious of reasons that the employer fails to document at the time but relies on later. And courts and the EEOC will strictly scrutinize the stated reason for the hardship.  So if a requested accommodation would in fact meet the threshold for undue hardship, there will be significant, identifiable reasons why this is so, and an employer should document those reasons as specifically as possible as part of the interactive process.

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