EEOC Update and Select ADA developments
December 17, 2019 @ 2:00 pm - 3:30 pm
Associate Legal Counsel
Join us as Carol R. Miaskoff, Associate Legal Counsel, EEOC, discusses the changes and updates of the EEOC in 2019 and 2020. She will also cover some of the leading developments in ADA enforcement.
I’m writing to follow up on your question about offsets.
Here is what the Commission has said on this issue:
EEOC’s ADA regulations, at 29 CFR section 1630.2(p), specifically provide that “undue hardship” means “significant difficulty or expense incurred by a covered entity” when considered in light of the following factors: (i) The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding; (ii) The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources; (iii) The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities; (iv) The type of operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and (v) 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.
Further explanation and advice is found in the EEOC’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship, which states: “The ADA’s legislative history indicates that Congress wanted employers to consider all possible sources of outside funding when assessing whether a particular accommodation would be too costly.(115) Undue hardship is determined based on the net cost to the employer. Thus, an employer should determine whether funding is available from an outside source, such as a state rehabilitation agency, to pay for all or part of the accommodation.(116) In addition, the employer should determine whether it is eligible for certain tax credits or deductions to offset the cost of the accommodation. Also, to the extent that a portion of the cost of an accommodation causes undue hardship, the employer should ask the individual with a disability if s/he will pay the difference.”