Employment Rights for People with Disabilities: Exceptions Where an Employer Does Not Have to Provide a Reasonable Accommodation to an Employee
There are 3 situations where an employer is NOT required to provide a reasonable accommodation for your disability: the “Undue Hardship” exception, the “Direct Threat” exception, and the exception for when the employer shows you CANNOT safely perform essential job functions. This section explains each exception.
(1) UNDUE HARDSHIP
An employer does NOT have to provide a reasonable accommodation that would cause an "undue hardship" to the employer. There is no single definition of “undue hardship”—it is a case-by-case question that depends on the type of accommodation you’re requesting and the employer’s particular situation—e.g., what type of business it is, how many employees, the employer’s financial situation, etc. In general, however, an undue hardship means that the accommodation you want would be too expensive or difficult for the employer make, or would have a significant impact on the employer’s business, or would be too disruptive to the business or to the work of other employees.
However, an employer CANNOT claim undue hardship based on employees' (or customers') fears or prejudices about your disability (e.g., fears or prejudices about people with past addictions or mental health issues). Also, an employer CANNOT claim that other employees would be upset about giving you an accommodation. Finally, an employer CANNOT claim that making an accommodation—for example, hiring someone with a criminal conviction—would cause their insurance premiums to go up.
Important: Even if an employer can show that the particular accommodation you asked for would cause undue hardship, the employer may still have to provide a different accommodation if there is some other type of accommodation that would also be effective and would NOT cause a hardship.
(2) DIRECT THREAT
The law does not require that an employer give you reasonable accommodations for your disability if you would pose a significant danger to the health or safety of yourself or others AND there is NO possible reasonable accommodation that would remove or reduce the risk of harm.
There are some protections for you if an employer is arguing that you would be a direct threat to other employees, customers or property:
- First, an employer must first make an individualized assessment of you and whether you can safely perform the essential functions of the job.
- Second, an employer can only reject you if you pose a significant risk of harm to others and there is a high likelihood that you will harm someone due to your condition.
- Third, in deciding whether your conditions creates a significant risk of harm, the employer must consider your individual situation and history of substance/alcohol abuse—for example, whether you have a history of harmful behavior due to your addiction—and CANNOT simply go on assumptions or statistics about people who suffer from substance/alcohol addiction and their likelihood of relapse.
- Fourth, the employer’s evaluation must rely on the most current medical knowledge and the best available objective evidence—NOT simply stereotypes, fears, or assumptions about people with mental illness, addiction, or other disabilities.
(3) CANNOT SAFELY PERFORM ESSENTIAL JOB FUNCTIONS.
Finally, an employer is NOT required to provide reasonable accommodations if they can show that you are unable to safely perform essential job functions—in other words, you are not qualified for the job—even with a reasonable accommodation. However, an employer can only make this argument based on the specific requirements of the job position you are seeking (not general requirements for other types of jobs), and if there are NO reasonable accommodations that could enable you to do the work.
See Cal. Dep’t of Fair Employment and Housing, Employment Discrimination Based on Disability, http://www.dfeh.ca.gov/res/docs/Publications/Brochures/2015/DFEH-184.pdf. ↑
EEOC, Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, No. 915.002 (Oct. 17, 2002). ↑
42 U.S.C. § 12111(3). See also Cal. Dep’t of Fair Employment and Housing, Employment Discrimination Based on Disability, http://www.dfeh.ca.gov/res/docs/Publications/Brochures/2015/DFEH-184.pdf. The ADA permits employers to require, as a job qualification, that an individual not “pose a direct threat to the health or safety of other individuals in the workplace.” Moreover, an employer may impose such a requirement even if an employer’s reliance on such a qualification might “screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability.” 42 U.S.C. § 12113(a)-(b). ↑
29 C.F.R. § 1630.2(r). The employer must consider factors including: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. ↑
29 C.F.R. § 1630.2(r). See also EEOC, EEOC Technical Assistance Manual on the ADA, § 8.7. An employer may not deny employment to someone with a disability “merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability of substantial harm; a speculative or remote risk is insufficient.” ↑
See EEOC, EEOC Technical Assistance Manual on the ADA, § 8.7. “An employer cannot prove a ‘high probability’ of substantial harm simply by referring to statistics indicating the likelihood that addicts or alcoholics in general have a specific probability of suffering a relapse. A showing of ‘significant risk of substantial harm’ must be based upon an assessment of the particular individual and his/her history of substance abuse and the specific nature of the job to be performed.” ↑
29 C.F.R. § 1630.2(r). ↑
Cal. Gov’t Code § 12940(a)(1)-(2). ↑
See Cal. Dep’t of Fair Employment and Housing, Disability Discrimination and Reasonable Accommodation, http://www.dfeh.ca.gov/res/docs/ppt/Disability%20Discrimination%20and%20Reasonable%20Accommodation%20pc%202-5-13.ppt. ↑