Research · 7 min read
What a Reasonable Accommodation Is, and What Undue Hardship Means
The duty is defined in three parts, one of which reaches benefits and privileges rather than job tasks. The defense against it is defined by five factors, and cost is only the first of them.
Key takeaways
- The statute defines failure to accommodate as a form of discrimination rather than as a separate obligation, with undue hardship stated as something the covered entity can demonstrate.
- The definition has three limbs, and the third covers enjoying equal benefits and privileges of employment rather than performing job tasks.
- The examples list includes job restructuring, modified schedules, reassignment to a vacant position, equipment changes, and modification of policies.
- Undue hardship means significant difficulty or expense, assessed against five factors covering net cost, facility resources, entity resources, operational structure and impact on operations.
- The regulation describes an informal, interactive process for identifying an accommodation, aimed at the precise limitations and what could overcome them.
- The accommodation duty runs for the actual disability and record of prongs, and the regulation states twice that it does not run for the regarded as prong alone.
Answer first: failing to accommodate is itself a form of discrimination
The statute does not treat accommodation as a separate obligation sitting alongside the prohibition on discrimination. It defines it into the prohibition.
The general rule is that no covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, hiring, advancement or discharge, employee compensation, job training, and other terms, conditions and privileges of employment. The construction subsection then says what discriminating against a qualified individual on the basis of disability includes.
Two of the listed items are the accommodation duty. Not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business. And, separately, denying employment opportunities to an otherwise qualified applicant or employee if the denial is based on the need to make reasonable accommodation to their physical or mental impairments.
The regulation states both as prohibitions. It is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business. And it is unlawful for a covered entity to deny employment opportunities to an otherwise qualified applicant or employee with a disability based on the need to make reasonable accommodation to that individual's physical or mental impairments.
Note where the burden sits in that sentence. The prohibition is stated first; undue hardship is an exception the covered entity can demonstrate.
The definition has three parts, and the third one is about benefits
The regulation defines reasonable accommodation in three limbs, and each addresses a different stage or aspect of employment.
The first is about getting considered: modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position they desire.
The second is about doing the job: modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable an individual with a disability who is qualified to perform the essential functions of that position.
The third is the one that is easiest to overlook and the one most relevant to anything involving a benefit: modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
That third limb is not about task performance at all. Its subject is the benefits and privileges side of the employment relationship. The genetic information regulation cites it directly when it observes that where an employer offers an inducement for participation in disease management or healthy-lifestyle programs, or requires meeting particular health goals, the employer must make reasonable accommodations to the extent the disability statute requires — modifications or adjustments enabling an employee with a disability to enjoy equal benefits and privileges of employment as similarly situated employees without disabilities enjoy, unless the entity can demonstrate undue hardship.
What accommodations can consist of, and the process for finding one
The regulation gives an illustrative rather than exhaustive list. Reasonable accommodation may include, but is not limited to, making existing facilities used by employees readily accessible to and usable by individuals with disabilities.
And, in a second group: job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities.
On how an accommodation is arrived at, the regulation describes a process rather than prescribing one. To determine the appropriate reasonable accommodation it may be necessary for the covered entity to initiate an informal, interactive process with the individual with a disability in need of the accommodation. That process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.
The regulation also limits the duty by reference to the definition of disability. A covered entity is required, absent undue hardship, to provide a reasonable accommodation to an otherwise qualified individual who meets the definition under the actual disability prong or the record of prong, but is not required to provide a reasonable accommodation to an individual who meets the definition solely under the regarded as prong. That statement appears twice — once in the definitions section and again in the accommodation section.
Two further provisions govern the edges. An individual with a disability is not required to accept an accommodation, aid, service, opportunity or benefit they choose not to accept. But if the individual rejects a reasonable accommodation that is necessary to enable them to perform the essential functions of the position, and cannot as a result of that rejection perform those functions, the individual will not be considered qualified.
And a covered entity is not excused from the requirements of the part because of any failure to receive technical assistance authorized by the statute, including any failure in the development or dissemination of a technical assistance manual.
Undue hardship is a defined term with five factors
The defense is not open-ended, and it is not simply about money.
Undue hardship means, with respect to the provision of an accommodation, significant difficulty or expense incurred by a covered entity, when considered in light of the factors the regulation then sets out. Note the pairing: difficulty or expense, and both qualified by significant.
The first factor is the nature and net cost of the accommodation needed, taking into consideration the availability of tax credits and deductions, or outside funding. Net cost, not gross cost — the regulation directs that offsets be taken into account.
The second is the overall financial resources of the facility or facilities involved in providing the accommodation, the number of persons employed at that facility, and the effect on expenses and resources.
The third widens the lens to the entity: the overall financial resources of the covered entity, the overall size of its business with respect to the number of its employees, and the number, type and location of its facilities.
The fourth is about how the organization is put together: the type of operation or operations of the covered entity, including the composition, structure and functions of its workforce, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity.
The fifth is about consequences: 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 facility's ability to conduct business.
Taken together, factors two through four are a size-and-relationship test rather than a price test. The same accommodation can be a significant expense in one setting and not in another, and the regulation builds that into the definition rather than leaving it to argument.
What this settles and what it does not
The structure is worth holding onto because it explains why the answer to almost any specific accommodation question is that it depends, without that being evasive.
The duty exists unless the covered entity can demonstrate significant difficulty or expense, judged against five factors that include the resources of the facility, the resources of the entity, the structure of the operation and the effect on other employees.
The definition covers three different things: getting considered for a job, performing its essential functions, and enjoying equal benefits and privileges of employment. The third of those is the limb that reaches a benefit or a program rather than a task.
The route to identifying one is described as an informal, interactive process aimed at pinpointing the precise limitations and the accommodations that could overcome them.
And the duty is tied to the definition of disability in a specific way: it runs for the actual disability and record of prongs and, the regulation says twice, not for the regarded as prong alone.
None of this tells any reader whether they would be entitled to a particular accommodation, whether a request would have to be granted, or how a dispute would come out. Those are determinations made on an individualized record, which is exactly what the regulation says the assessments require.
Sources
- 29 CFR 1630.2(o), (p), (q) and (r) and 29 CFR 1630.9 and 1630.10 — Definitions; Not making reasonable accommodation; Qualification standards, tests and other selection criteriaThe three-limb definition of reasonable accommodation including the benefits-and-privileges limb; the illustrative list of accommodations; the informal interactive process provision; the statement, appearing in both the definitions section and § 1630.9, that the duty runs for the actual disability and record of prongs but not for the regarded as prong alone; the definition of undue hardship as significant difficulty or expense and its five enumerated factors including net cost with tax credits, deductions and outside funding; the prohibitions in § 1630.9(a) and (b); the provision that an individual need not accept an accommodation but may cease to be qualified if they reject one necessary to perform essential functions; the provision that failure to receive technical assistance does not excuse compliance; the definition of qualification standards; the § 1630.10 prohibition on screening criteria not shown to be job related and consistent with business necessity; and the definition of direct threat with its individualized-assessment requirement, its reasonable-medical-judgment standard and its four factors.
- 42 U.S.C. 12112(a) and (b) — Discrimination; ConstructionThe general rule prohibiting discrimination against a qualified individual on the basis of disability in job application procedures, hiring, advancement, discharge, compensation, job training and other terms, conditions and privileges of employment; and the construction subsection defining that phrase to include not making reasonable accommodations to known physical or mental limitations of an otherwise qualified individual unless the covered entity can demonstrate undue hardship, denying employment opportunities because of the need to accommodate, and using qualification standards, employment tests or other selection criteria that screen out or tend to screen out individuals with disabilities unless shown to be job-related for the position and consistent with business necessity.
Frequently asked questions
Is failing to accommodate a separate violation from discriminating?
The statute treats it as part of the same prohibition. Its construction subsection says that discriminating against a qualified individual on the basis of disability includes not making reasonable accommodations to known physical or mental limitations of an otherwise qualified individual, unless the covered entity can demonstrate undue hardship, and separately includes denying employment opportunities because of the need to accommodate.
What counts as a reasonable accommodation?
The regulation defines three categories: modifications to a job application process so a qualified applicant can be considered; modifications to the work environment or to how the position is customarily performed so a qualified individual can perform its essential functions; and modifications that enable an employee with a disability to enjoy equal benefits and privileges of employment as similarly situated employees without disabilities enjoy.
What are examples of accommodations?
The regulation lists making existing facilities accessible and usable; job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modification of examinations, training materials or policies; qualified readers or interpreters; and other similar accommodations. The list is expressly not exhaustive.
What does undue hardship mean?
Significant difficulty or expense incurred by a covered entity, considered in light of five factors: the nature and net cost of the accommodation taking account of tax credits, deductions and outside funding; the financial resources and headcount of the facility involved and the effect on its expenses and resources; the overall financial resources, size, and number, type and location of facilities of the entity; the type of operation including workforce composition and the facility's relationship to the entity; and the impact on the facility's operation, including on other employees' ability to do their work and on the facility's ability to conduct business.
How is an accommodation supposed to be identified?
The regulation says it may be necessary for the covered entity to initiate an informal, interactive process with the individual, and that the process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome them.
When can an employer rely on a safety concern?
Direct threat is defined as a significant risk of substantial harm to health or safety that cannot be eliminated or reduced by reasonable accommodation. The regulation requires an individualized assessment of the individual's present ability to safely perform the essential functions, based on a reasonable medical judgment relying on the most current medical knowledge or the best available objective evidence, weighing duration of the risk, nature and severity of potential harm, likelihood of occurrence and imminence.