A concept in workplace disability accommodation situations is the idea of “undue hardship” which an employer asserts to avoid having to provide a reasonable accommodation for a disabled employee. California’s Fair Employment & Housing Act (FEHA) and the federal Americans with Disabilities Act (ADA) both require employers to make a reasonable accommodation for disabled employees. A defense to any reasonable accommodation is that it will cause an “undue hardship” to the employers’ operations or running its business. And like all defenses, the employer has the burden of proving and establishing that the employees’ requested accommodation would be unduly difficult.
The undue hardship defense though is a higher bar than one might assume. It does not mean merely inconvenient or burdensome for the employer. The FEHA definition and its interpretative regulations state that the accommodation must be a “significant” difficulty or expense when considering several factors: (1) the cost of the accommodation, (2) the financial resources, number of employees, and the effect of the accommodation on the employer, (3) the type of operations of the employer, and (4) the relationship between the employer’s facilities.
In a 2008 California Supreme Court decision, Ross v. Ragingwire Telecommunications, the court majority held that an employee could not sue his prospective employer for refusing to allow the employee to use doctor-prescribed medical marijuana while off-duty to treat his long-term back problems. The majority basically found that employers are not obligated to accommodate the use of off-duty drugs.
However, in dissent, the justices noted that a reasonable accommodation includes changing the employer’s policies – such as the no drug use policy. The employer had presented no evidence “to substantiate its claim that accommodating plaintiff’s doctor-recommended use of marijuana would necessarily or likely have substantial adverse effects on its business operations. In the absence of such evidence, there is no basis for the majority to conclude that accommodating plaintiff’s doctor-approved marijuana use would be unreasonable within the meaning of the FEHA.”
Given the high burden to establish the undue hardship defense, most employer’s opt to challenge the reasonableness of the accommodation first. For employees, it’s always a good idea to keep in mind the reasonableness of any requested accommodation.