Fundamental alteration and undue burden under the ADA

In brief

The ADA does not require changes that would fundamentally alter what an entity offers, or that would impose an undue burden. These limits are not a general permission to skip accessibility. Each one has conditions, and under Title II the entity has to be able to prove it and put it in writing.

Title II web rule

Sections 35.200(b) and 35.204 of the web rule let an entity comply only to the extent that full compliance would not cause a fundamental alteration or undue financial and administrative burdens.

• The entity has the burden of proving that compliance would cause one.
• The decision must be made by the head of the public entity or their designee.
• It must be documented in a written statement of reasons.
• If the entity is excused, it must still take other feasible steps to give people with disabilities the benefits and services to the maximum extent possible.

Title III and effective communication

Under 28 CFR 36.303, a business does not have to take steps that would fundamentally alter its goods or services, or that would result in an undue burden, defined as significant difficulty or expense. If a particular aid would cause that, it must offer an alternative aid, if one exists, that avoids the problem and still gives people with disabilities the benefits of the offering to the maximum extent possible.

Title I

Title I uses a different term for employers: undue hardship, defined as an action requiring significant difficulty or expense, judged by factors such as the nature and cost of the accommodation and the employer's resources.

What to do

• Treat these limits as a last resort and try to comply first.
• If you think one applies, document the facts, costs and reasoning in writing, and have the right decision-maker sign it.
• Even then, provide the other accessible options you can.
• Ask a lawyer before relying on a limit.

Common mistakes

• Citing cost without documenting it.
• Assuming the limit excuses the whole project. It excuses only the part that would cause the problem.
• Mixing up the terms: undue hardship (Title I), undue burden (Titles II and III) and readily achievable (a separate Title III standard).

Sources

• 28 CFR Part 35, Subpart H: Accessibility of Web Information and Services (eCFR), opens in a new tab
• 28 CFR 36.303: Auxiliary aids and services (eCFR), opens in a new tab
• Americans with Disabilities Act, statute text (ADA.gov), opens in a new tab

This page is for informational purposes only and is not legal advice. For binding requirements, refer to the official ADA statute and regulations, and ask a lawyer how they apply to you.