May 20, 2022 – P.M. Asked: Can I Negotiate Remote Work as a Condition of Employment if I am Immunocompromised?
On May 20, 2022, P.M. Asked:
“I am immunocompromised and thinking of switching jobs. Because of my compromised immune system, I need to work remotely during the coronavirus pandemic to avoid exposure to COVID-19. My current employer allows me to work remotely as a reasonable accommodation, but I don’t want to move to another job if they will not provide it. How can I negotiate remote work as a reasonable accommodation from a prospective employer as a condition of employment?”
The Americans with Disabilities Act (ADA) requires employers with 15 or more employees to provide reasonable accommodations to disabled employees or applicants for employment unless it would cause an undue hardship on the employer. One specific category of reasonable accommodation is “modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position.” To be eligible for a reasonable accommodation, an individual must otherwise satisfy the skill, experience, education, and other job-related requirements of the position in question, with or without a reasonable accommodation, and they must be qualified to perform the essential functions of the position except for limitations caused by a disability.
Regarding undue hardship, it is defined as “significant difficulty or expense,” and the presence of an undue hardship is determined by examining the resources and circumstances of the employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers to reasonable accommodations that are “unduly extensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business.”
The Equal Employment Opportunity Commission (EEOC) has published guidance that permits immunocompromised individuals to request reasonable accommodations from employers based on their concern that they face a heightened risk of severe illness from COVID-19. Before requesting remote work as a reasonable accommodation from a current or prospective employer, an individual should conduct an initial assessment to determine whether the position in question is compatible with remote work. This will require examining the essential job functions of the position in question and whether carrying out those essential job functions remotely would impose an undue hardship on the employer. Telecommuting and changes to work schedule are generally considered “free or low-cost” accommodations that do not impose undue hardship on employers, but they may not be granted if they require modifications to the essential functions of the position.
The EEOC states that “determining the best moment to tell a prospective employer about the need for reasonable accommodation on the job is a personal decision.” An individual may choose to inform a prospective employer about the need for a reasonable accommodation during the application or interview process, while others may wait until they have a job offer to discuss reasonable accommodations. Individuals are not required to inform a prospective employer about the need for a reasonable accommodation during the application process and can wait until they are employed to request one.
When submitting a request for a reasonable accommodation to a current or prospective employer, making the request in writing will create a record of the request, which may be helpful if a dispute arises over the request. An employer may request additional medical information to substantiate an individual’s disability and need for a reasonable accommodation. An individual may request a specific reasonable accommodation, but if other accommodations will meet the individual’s needs, the employer is free to select among them.
If you believe that you have been unfairly denied a reasonable accommodation, you should contact an experienced disability discrimination attorney for help.
The Job Accommodation Network has published a helpful guide for requesting and negotiating reasonable accommodations, which can be accessed here.
Click here to access other COVID-19 FAQ.