Clarifying the Undue Hardship Standard in Response to Requests for Reasonable Accommodation

This article, written by attorney Karen Whitley, was originally published by the New Hampshire Bar News and can be found here (p25).

A post-pandemic tug of war is playing out between employers calling workers back to the office and employees who want to work from home. Among other reasons, employers focus on the  importance of in-person collaboration, mentoring, and performance monitoring. On the other hand, employees who worked successfully from home during the pandemic may want to continue,  particularly if remote work would be a reasonable accommodation of a disability under the Americans with Disabilities Act (ADA) or a religious need under Title VII of the Civil Rights Act.

The Equal Employment Opportunity Commission (EEOC) predicted this tension in its technical guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”:

[Q. D.15] Assume that an employer grants telework to employees for the purpose of slowing or stopping the spread of COVID-19. When an employer reopens the workplace and recalls employees to the worksite, does Clarifying the Undue Hardship Standard in Response to Requests for Reasonable Accommodation the employer automatically have to grant telework as a reasonable  accommodation to every employee with a disability who requests to continue this arrangement as an ADA/Rehabilitation Act accommodation?

[A.] No…. The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations. The employer has no obligation under the ADA to refrain from restoring all of an employee’s essential duties at such time as it chooses to restore the prior work arrangement, and then evaluating any requests for continued or new accommodations under the usual ADA rules…. (Emphasis added).

As a result, if an employee asks for an accommodation after the pandemic, the employer need not automatically agree. Instead, the employer should follow the usual interactive process, evaluating  whether in-person work is an essential job function, and whether the accommodation is reasonable. Even so, the employer can object if the employee’s requested accommodation would be an undue hardship. One wrinkle is that courts have interpreted “undue hardship” differently under the ADA and Title VII.

In the past, an employer could prove that it would be an undue hardship to grant a religious accommodation under Title VII merely by showing that the employer was being asked to “bear more than a de minimis cost.” But under the ADA, showing that a disability accommodation would be an undue hardship requires proof of a “significant difficulty or expense.” This could encompass meaningful financial costs, as well as changes that “are unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.”

On June 29, 2023, the US Supreme Court clarified the employer’s burden of proof in response to a religious accommodation request. In Groff v. DeJoy, a postal worker refused to work on Sundays for religious reasons. 600 U.S. 447 (2023). During busy seasons, his co-workers and supervisors would make his deliveries. After being disciplined, the employee resigned and sued under Title VII. The US Postal Service argued that the employee’s absence on Sundays was an undue hardship, and the lower court agreed that the Post Office met the “low standard” because the employee’s refusal to work “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.”

The Supreme Court revisited the standard and held that a  eligious accommodation can pose an undue hardship “when [the] burden is substantial in the overall context of an employer’s business.” That analysis must consider “all relevant factors in the case at hand, including the particular accommodations at issue, and their practical impact in light of the nature, size, and operating cost of [an] employer.” It is not enough to show that the accommodation imposes “more than a de minimis cost” or “very small or trifling” inconvenience, like temporary or administrative costs or voluntary or occasional shift swapping. Imposing on co-workers would not be an undue hardship unless it also impacted the conduct of the company’s business. Although the Court declined to say that the undue hardship standard under Title VII should now be interpreted according to prior precedent under the ADA, the “undue hardship” standards appear to be more aligned.

Although there do not appear to be any published decisions in New Hampshire applying the new DeJoy standard, other courts in the First Circuit have confirmed that a religious accommodation’s “substantial” burden can include more than just financial costs. In Isaac v. Executive Office of Health and Human Servs. et al., an unvaccinated employee’s presence at meetings would have been an undue hardship due to the risk to health and safety of people who were vulnerable to COVID-19. And in Adams v. Mass General Brigham Inc., the court said that proof of undue hardship
can include direct economic costs, indirect costs related to health and safety, the impact on the ability of other employees to do their job, and damage to a hospital’s public image.

During the pandemic, requests for medical and religious reasonable accommodations increased. Some employers’ knee-jerk reaction was to say no, citing inconvenience, inefficiency, or  unexpected costs. The DeJoy case and others are reminders that employers should carefully analyze each request, evaluate the actual impact on business operations, and, if appropriate, gather  objective facts to prove that the effect would be “substantial.” In addition to financial costs, employers can focus on non-economic damages, disruptions to business operations, and other specified risks to show that an undue hardship exists. Employers and employees should realize, though, that even if an undue hardship exists under the heightened standard, that is not the end of the back-and-forth; both must work to find an alternative that would reduce the employer’s burden to an acceptable level.