Staffing Firm Meeting Undue Hardship Under ADA

Complications in the undue hardship assessment may arise where an individual with a disability may be considered a joint employee of both a staffing firm, such as a temporary agency or employee leasing firm, and the firm's client, who exercises control over the individual and supervises his or her work. In this circumstance, both the staffing firm and its client may be obligated to provide a reasonable accommodation for a staffing firm worker with a disability, but how should the cost-related undue hardship claims be assessed? According to the EEOC, when a staffing firm and its client are both obligated to provide a reasonable accommodation, the following principles apply: - Where a reasonable accommodation would involve significant expense for both the staffing firm and the client, even when their resources are combined, both entities can show undue hardship. - Where the resources of the staffing firm and the client together are sufficient to provide an accommodation without undue hardship, either entity may still show undue hardship, but only if it can demonstrate two things: - First, the entity's resources, alone are insufficient to provide the reasonable accommodation with undue hardship and, - Second, the entity made good faith, but unsuccessful, efforts to obtain contribution from the other entity. - Where implementing a reasonable accommodation would result in significant expense for a staffing firm, and the firm has made good faith, but unsuccessful, efforts to obtain contribution for the cost of the accommodation from the client, the staffing firm has an undue hardship defense. - Where a reasonable accommodation would have resulted in significant expense for a client, and the client has made good faith, but unsuccessful, efforts to obtain a contribution for the cost from the staffing firm, then the client has an undue hardship defense. - Where the resources of either the staffing firm or the client are sufficient to provide an accommodation without undue hardship and one of the entities refuses to contribute to the cost of the accommodation, the other entity still must provide the accommodation; there is no undue hardship defense available. - A staffing firm or client that refuses to contribute to the cost of a reasonable accommodation may be liable for failure to provide an accommodation, even if the other entity, on its own, provides the accommodation.