A good idea is to include a discussion of the interactive process as part of your ADA policy. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. To help determine effective accommodations, the Equal Employment Opportunity Commission (EEOC), recommends that employers use an interactive process, which simply means that employers and employees with disabilities who request accommodations work together to come up with accommodations. l&#$/ h o u x wy}v%,V(f8T8b@c9\8u8K C17+Y:AB9*8r3wBA=kXP2c#:y]fJupQ0@@/I(-qRC>
.1FENSSbi/8fkc//`Ny!6rO"Rd0Z7jN)43/WU!HN(tj&]l If a Department Decides that the Proposed Accommodation(s) is Unreasonable. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. " What does antisemitic discrimination look like at work? What was the motivation, and did the employer meet its duty?, "The interactive process should be ended only after people have taken a hard look and decided theres really nothing else to say about the matter. 2 0 obj
The interactive process can begin when the employee makes the request. ", "Clarity is important," he said, "and getting things in writing adds to clarity. As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. The request can also come from someone other than the employee. Employers that follow the technical requirements of the statute, demonstrate flexibility and document their compliance put themselves in the best position in the event of litigation. "You rarely see an employee who knows about the ADA and asks for a reasonable accommodation," he told HR Dive;"You need to start the process even if they havent used any magic words. Remember to only ask for the necessary medical information. All rights reserved. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. The California Fair Employment and Housing Act requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship. No Past Exhibit Booths for Interactive Process. The Interactive Process can begin in a number of ways. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. Dont assume that thecosts of providing the accommodationwill be too expensive. 18-50053 (Dec. 12, 2018). A JAN consultant explained the interactive process, that the employee's disclosure is a request for accommodation, and shared JAN's Sample Reasonable Accommodation Request Form for Employers to provide to the employee, in order to clarify and document her accommodation needs. If there is any question concerning the nature of the limitation or appropriateness of an accommodation being considered, the supervisor should consult with the Vocational Rehabilitation Counselor in University Health Services. You dont have to provide a reasonable accommodation that would cause undue hardship. But you must select the next reasonable and effective accommodation when this happens. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. Finally, the employee says, "I'm really having trouble getting out of bed in the morning. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. var temp_style = document.createElement('style');
Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. They are excellent. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? The interactive process can begin when the employee makes the request. ' The sample Options Letter may be modified by an appointing power 4 "Often the request doesn't come until, for example, theres a performance management action thats going on." Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. |^| &. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. If more accommodation ideas are needed, the employer can ask the employees medical provider for ideas in some cases medical professionals are able to suggest effective accommodations. Pay careful attention to medical-related issues employees bring to your attention. II. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. The description of the [modified/alternate] employment is as follows (include description of accommodation here):
This is a temporary accommodation, not a permanent position. Never assume an employee is disabled. If there is more than one option, the employer should consider the preference of the employee. Other resources, such as the Job Accommodations Network (JAN), or your employee's medical provider, can give suggestions. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). ", Sencenbaugh said that when ADA issues are intertwined with performance issues, employers should always consider how its actions will look to the employee and to a jury a year from now. If there is a termination, he said, all the cards are on the table. This process is initiated either by: The employee's written or verbal request for assistance, or. Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. Together you can discuss the potential impact of the accommodations. Titled " The Zappos Culture Book ," this handbook highlights the company's dedication to workplace culture. Consistent with departmental and campus practices, the supervisor may agree to an accommodation for essential functions, and to accommodation for, or elimination of, non-essential functions. The following persons will be present at this meeting: [names of meeting participants]. External resources to help identify whether accommodation is possible include: SAMPLE REQUEST FOR REASONABLE ACCOMMODATION PACKAGE: ENGLISH (PDF), SAMPLE REQUEST FOR REASONABLE ACCOMMODATION PACKAGE: SPANISH (PDF), Communication Center: 800-884-1684 (voice), 800-700-2320 (TTY) or, Department of Rehabilitation Disability Access Services, EEOCs fact sheet on small employers and reasonable accommodation, EEOCs enforcement guidance on reasonable accommodation under federal law. ' ( b c h yi hn >*B*OJ QJ ^J ph hn OJ QJ ^J hn B*OJ QJ ^J ph hn B*OJ QJ ^J ph h] OJ QJ ^J h] h] h}R hn OJ QJ ^J j hn CJ Members may download one copy of our sample forms and templates for your personal use within your organization. %
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To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. 200 0 obj
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Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. The court concluded that her response to the company's proposal to leave at 4 p.m. was "not the stuff of flexible [and] interactive discussions.". If the accommodation involves a schedule change or policy modification, then certain managers or supervisors may need to know of the change to effectively implement it. The employee who requested the accommodation is often the best source of information about the disability and possible accommodations. Once the employer has notice of a disability and the need for an accommodation, the ADA requires (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employees request; and (3) offering an accommodation that is reasonable and effective.. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. | 2 p.m. Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. The law does not require the use of these or any other forms to make a request for a reasonable accommodation or to engage in an effective, good faith interactive process. <>
Ultimately, she refused this proposal and instead sought intermittent FMLA leave that would allow her to leave at 2 p.m., and she immediately adjusted her schedule accordingly. $("span.current-site").html("SHRM MENA ");
The ability of employers and their managerial staff to recognize requests is important. Shortly thereafter, the company terminated the plaintiff's employment after she failed to report to work due to child care issues. But this all counts as the interactive process. Knowing When to Request Medical Information, What does "Undue Hardship" mean? document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. 1998) (when the employee "fail[s] to hold up her end of the interactive process by clarifying the extent of her medical restrictions, [the employer] cannot be held liable for failing to provide reasonable accommodations"); When an employee becomes unable to perform the essential, assigned duties of the currently-held position as a result of a covered disability, the Berkeley campus is committed to providing services to assist the employee. But the supervisor should have enough training to know when its time to go to HR. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas.
It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. 3 0 obj
The law has helped hundreds of millions of workers in its relatively short history. of Fair Employment & Housing (DFEH) expects employers to make up to three attempts, if needed, to contact the employee regarding participation in the interactive meeting. Your session has expired. That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. "), That the supervisor said, "How can I help you? If it is a written letter, include a handwritten signature. hbbd```b``:"kd6di`f0^
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Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. Professional Pointer: Employee use of FMLA leave, particularly when the leave taken is intermittent, can be one of the more challenging leave-related situations employers face. It is understood that these are temporary arrangements designed to allow UCSD employees to work while recovering from illness or injury, and do not represent a permanent change of duties or responsibilities. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. If it is decided that a proposed accommodation is unreasonable or presents an undue hardship, the Department should re-initiate the Interactive Process with the employee to try and arrive at a mutually agreeable alternative to the originally proposed accommodation. "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. For employers, the hard part often is knowing when to kick off the process according to Adam Sencenbaugh, a partner at Haynes and Boone, LLP. Choose someone to ensure that the request for accommodations gets processed. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. The good news, according to David Fram,director of ADA &EEO services for the National Employment Law Institute, is there's something you can do about it. Once an accommodation has been chosen, it is time to implement the accommodation. Determine if any repair, maintenance, or replacement is necessary to any equipment. If there is no solution, the best thing is your documentation showing that you did explore accommodation options. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. The campus will explore reasonable accommodation options when an employee requests accommodation, or there is evidence that an employee may need accommodation due to a covered disability. As stated by the Third Circuit Court of Appeals in Taylor v. IV. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. z0#D0v[{qL*Aoco; tY-bGG[!8^N^1swy QZU^BL@z6xWbt aQ"(4^+(4`V@91&jE,_C5lRqk_h:f.tlZr.9gO(t"w#\O #*^]]7j]" :It)Rf!n', Keep it brief. Learn more about your compensation, benefits and everything that goes into a Total Rewards package. The EEOC (Reasonable Accommodation and Undue Hardship (EEOC Guidance)provides the following examples: Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." And if still more ideas are needed, then the employer should consult with outside resources such as JAN, vocational rehabilitation, rehabilitation engineers, and disability-related organizations. Please purchase a SHRM membership before saving bookmarks. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. Should an Accommodation Request Automatically Trigger FMLA? The assistant wanted the employee to sign a blanket medical release. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. If the employee cannot provide the necessary information, then medical documentation can be useful. While employers may have policies instructing their employees to provide written notice of the need for an accommodation, the employer cannot ignore verbal, visual or other cues. $(document).ready(function () {
Your Employee & Labor Relations team now supports both represented and non-represented employees. The following situations and solutions are real-life examples of accommodations that were made by JAN customers. Under the ADA, when an employee requests an accommodation and the disability and need for accommodation are not obvious, then the employer can request medical documentation to help determine whether the employee has a disability and needs the requested accommodation and information to help process the accommodation request. The interactive process often begins when the employee makes an accommodation request. The following list provides some guidelines. For example, if an employee who recently started using a wheelchair indicates that he needs a ramp to get into the workplace, the disability and need for accommodation are obvious. Make use of words in such a way that . For example, it is sufficient if the employer receives notice of treatment needed by an employee. The sample policy, written by a law firm, notes that it is intended to aid employers in meeting their obligations under the Americans with Disabilities Act (ADA), as amended, and states that the accompanying sample forms are for "informational, educational, and/or training purposes only." You have successfully saved this page as a bookmark. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to persons with disabilities unless doing so would impose an undue hardship or pose a direct threat to the safety of the employee or others. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. Navigating the New EU Unitary Patent, EEOC targeting discriminatory use of artificial intelligence, Court upholds firing of marijuana cardholders discharged after positive weed test, Deadline nears for complying with PUMP Acts expanded protections for nursing mothers in the workplace. "Focus on disclosing only information that is need-to-know. Employees can start the interactive process using any form, including verbal communication. Uncertainty from the start. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. Thats because their request for a new chair isnt related to a medical condition. After complaining to her supervisor, the supervisor talked with HR. But failure to engage in the interactive process may prevent an employee from receiving a reasonable accommodation, and may therefore result in liability under the ADA. This agreement should be documented. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) {
Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. Evaluate whether the employee can perform the job safely. One thing employers might want to do when testing accommodations is to make a written agreement with the employee that the accommodation is being tested, how long the test will be, and what will happen if the accommodation does not work. The standard of proof required here is low: when an employee continues to come to work, and continues to perform at least some of his or her essential duties, employers are encouraged to proceed with the interactive process. In some cases, an accommodation stops being effective for various reasons such as: the employees limitations change, workplace equipment changes, the job changes, the workplace itself changes, or the accommodation becomes an undue hardship for the employer. Reasonable Accommodation - National Association of Letter Carriers AFL-CIO Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. Employees Responsibilities:
Work within the written medical limitations
Provide medical updates of functional limitations
If taken off work by your doctor, notify supervisor and [name], ACCES Specialist. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. But the FMLA doesnt provide paid leave, and employers say it can be difficult to administer. This includes with or without reasonable accommodation. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. Because accommodations are made on a case-by-case basis, these examples may not be effective for every workplace but give you an idea about the types of accommodations that are possible. In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes.