} The Americans with Disabilities Act (ADA) not only prohibits discrimination based on disability, but it also requires that employers provide workers with disabilities reasonable accommodations. The Interactive Process can begin in a number of ways. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. 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. ", In concluding that the plaintiff's ADA failure-to-accommodate claim also could not proceed, the court pointed to her failure to engage in the interactive process required by the ADA, including her refusal to try leaving the office at 4 p.m., as proposed by the company, or explore public transportation options to address her traffic-related anxiety. In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. Take the employee's expressed preferences into consideration. n\3C[% In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. endobj 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. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Pay careful attention to medical-related issues employees bring to your attention. However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. After complaining to her supervisor, the supervisor talked with HR. Court decisions interpreting the ADA provide some general principles. (For example, "I'm getting headaches from the glare from my computer screen. 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. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. If the employee is not a top performer or a malingerer,the supervisor doesn't want to engage; "thats when things go wrong," he said. 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. $('.container-footer').first().hide(); LinkedIn and 3rd parties use essential and non-essential cookies to provide, secure, analyze and improve our Services, and to show you relevant ads (including professional and job ads) on and off LinkedIn. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. Communication is especially important if youve provided any assistive technology or equipment. The interactive process can begin when the employee makes the request. endstream endobj startxref Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. Before meeting with the employee, review the employee's current job description and any available Employers must initiate an "interactive process" when an applicant or employee requests reasonable accommodations. Should an Accommodation Request Automatically Trigger FMLA? The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { Once youve identified an accommodation request, its best to take action immediately. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? Assess the operational needs of the department, considering issues such as: The number of persons employed in the department; The number, type and locations of the units within the department; The type of operation, including the composition, structure, and functions of its workforce, its geographic separateness, and the administrative relationship of the department to the campus; The impact of the accommodation on the operation of the department, including the impact on the ability of other employees to perform their duties and the impact on the department's ability to conduct business; The overall financial resources of the UC system; The impact of the accommodation on campus operations. Uncertainty from the start. Welcome to the newest section of our site - Talent Acquisition! [See. h* e N N N h* e e }* N e e f* N f* r ) T * y d b) R* * 0 * p) 0 v p 0 * 0 e * D 8 t h* h* * N N N N 0 " An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. Empower your employee to express concerns with their accommodations at any time. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. Be open to doing things a different way. A request for assistance or indication by the employee that some corrective measure may need to be taken can be made verbally and casually, as well as formally. Time Warner Cable Texas LLC hired the plaintiff in October 2012 as a workforce analyst. (4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer. 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." Please confirm that you want to proceed with deleting bookmark. The EEOCs guidance provides that an employer should initiate the reasonable accommodation interactive process without being asked if the employer (1) knows that he employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. In other words, employers must recognize the need for accommodation even in the absence of an employee request. This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". Shortly thereafter, the company terminated the plaintiff's employment after she failed to report to work due to child care issues. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. This is the time to brainstorm and consider what might work. l&#$/ h o u x After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. The following situations and solutions are real-life examples of accommodations that were made by JAN customers. endstream endobj 188 0 obj <>stream 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. <> If a Department Decides that the Proposed Accommodation(s) is Unreasonable. If it is a written letter, include a handwritten signature. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. But Fram also advises documenting the following: If there isnt a quick fix, Fram said, then the formal ADA process should started "not by supervisors, but by HR or legal. As stated by the Third Circuit Court of Appeals in Taylor v. 3 0 obj That way, no one is surprised when the accommodation is revisited down the road. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. 0 One way an employer can ensure effective communication with an employee who has requested an accommodation is to promptly schedule a meeting to discuss the employee's request. The interactive process will look different for everyone. It may also come as a result of administering FMLA leave or a workers compensation claim. ta SKN Members may download one copy of our sample forms and templates for your personal use within your organization. This includes information on the essential job functions your employee can and cant do. 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. ", "When implementing an accommodation, supervisors sometimes disclose medical information,"Loy said. If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. Please log in as a SHRM member before saving bookmarks. It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. After Completing FMLA, The Employer Uses The Interactive Process And Lawfully Terminated Its Employee The crossroad between the protections of the FMLA and the ADA is somewhat difficult to navigate. A Transfer Search is a process that may be available to employees who cannot perform the essential functions of their own position for an extended period of time, but are able to work in other jobs. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . Please note that all such forms and policies should be reviewed by your legal . Notice may also come in the form of objective proof, such as sudden or increasing inability to perform job functions or other physical manifestations of symptoms that are readily observable to others in the workplace. ET, Webinar So it's important to note that your employee's request doesn't have to be in writing. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 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. "If an employee mentions some type of limitation or problem, the supervisor should err on the side of caution and move to talk to the employee.". According to the EEOC, the interactive process is not always required under the ADA. Your Accommodation Request Was Denied. Then select the most appropriate accommodation for you and your employee. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. Assess the effectiveness of the accommodation(s) in enabling the employee to perform the essential functions of the job. That the employer has provided what was requested. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. 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. c'`WpPs%<8 I\`aC~",&,b)qo)&ZG*#TFL*#QTy`^`t"d+p[|:n.Hmb]7Dx=>J ?|wadG 1fO7,m/I?viwMkO % Circumstances or the effectiveness of accommodations can change over time. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. Other options, such as a leave of absence or reduced schedule, exist and should be evaluated in light of what is permitted under policy and contract. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. endobj % > g  f bjbj 4 X " This is considered an accommodation request. 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. If on account of disability an employee continues not to perform the essential functions of the job, either because s/he refuses to utilize offered accommodations or because even reasonable accommodations do not enable him/her to perform the essential functions of the job, the employee may be eligible for medical separation. Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". If the employee requests a type of assistance the supervisor may simply provide it (without any reference to whether the request is disability-related), or the supervisor may ask if the assistance is being requested as an accommodation to a disability (and if the response is affirmative, proceed under campus procedures for accommodating employees with disabilities). That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." Finally, the employee says, "I'm really having trouble getting out of bed in the morning. The request can also come from someone other than the employee. Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. Evaluate whether the employee can perform the job safely. The process requires an individualized assessment of both the job and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation. ", Additionally, employers sometimes request or gather too much medical information, Loy said. Your Employee & Labor Relations team now supports both represented and non-represented employees. That there was followup, but that it stayed away from medical details. Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. Never assume an employee is disabled. According to the EEOC, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation" when requesting an accommodation. Any extension of this agreement beyond this will be decided on a case-by-case basis and will be dependent upon additional information from your doctor and upon the needs of the department at that time. It was created to assist you while you are recovering. Unnecessary delays are a violation of the ADA. What Now? Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. 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. A large company wanted to standardize all of the accommodation requests it receives. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. Adobe PDF viewer is required for some of these documents. SHRM Employment Law & Compliance Conference, ADAs Interactive Process Is a Two-Way Street, New OSHA Guidance Clarifies Return-to-Work Expectations, Trump Suspends New H-1B Visas Through 2020, Faking COVID-19 Illness Can Have Serious Consequences, White House Takes Action Against Migrant Child Labor, EEOC Lawsuit Highlights Cancer Discrimination in the Workplace. The checklist and any notes should be maintained in a separate confidential medical file for that employee. Asking for all medical records will rarely, if ever, meet this test. 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. The law requires that employees and employers engage in the Interactive Process. 2 0 obj Also, include a closing and a polite signature. These ideas, along with any ideas from the employee and employees medical provider, must be documented. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." the employees disability and need for accommodation are obvious. This button displays the currently selected search type. Don't hide your interactive process requirement, rather publicize it. 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." The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. No Upcoming Events for Interactive Process. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. 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. Other resources, such as the Job Accommodations Network (JAN), or your employee's medical provider, can give suggestions. On Feb. 24, 2015, the company issued the plaintiff a written warning as a result of poor attendance unrelated to FMLA-approved absences and advised that failure to improve her attendance would result in disciplinary action. <>>> Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. The marginal functions of a second crew member include cleaning the small kitchen in the employee's lounge, which is something the first crew member can perform. 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.. Ask your employees if they have any thoughts on what might help. 1 0 obj The accommodation [will begin or began] on [date] and end based upon future doctor visits. The law requires that employees and employers engage in the Interactive Process. Many employers dont want to, because they dont want to hear what JAN says, but you can be sure that if youre sued the employees lawyer will be calling JAN. You cant hide your head in the sand on this. Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." This includes with or without reasonable accommodation. Work with your employee to understand their specific challenges or limitations. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. Keep up with the story. Second, the employer must also have notice of the employees desire to obtain some type of accommodation. Friends, family, and health professionals can request accommodations on an employees behalf. No Remote Monthly Series Training for Interactive Process. hn UVmH nH u hn jD hn U The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. Employees last name], We have received your medical release from your doctor, [name] dated [date]. 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. For example, if an employee with a non-visible disability indicates she is having trouble completing her work tasks because of her disability, the employer does not have enough information to provide effective accommodations. Box 370, San Carlos CA 94070 Phone: 650-595-4447 ~ Fax: 866-804-0574 dfreeman@freemanrehabilitationservices.com Interactive Process Here are links to a sample interactive process letter to employees and charts. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. III. Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. Notify supervisor if unable to report to work for any reason Supervisors Responsibilities: Ensure that employee is not directed to perform tasks that exceed restrictions recommended by treating physician. In December 2014, the plaintiff's new supervisor made it clear that in the absence of an approved accommodation under the ADA, she was expected to be in the office beginning in the new year. Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. Another EEOC recommendation is to consider the employees preference. It is with the understanding that after each future doctor visits you will provide a medical update indicating either a release to perform the essential functions of your position or information describing updated functional limitations, so that a determination can be made regarding continuation of the temporary accommodation. An important step in the performance review process is choosing the standard for the evaluation. If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. 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', The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. To request permission for specific items, click on the reuse permissions button on the page where you find the item. ", "Clarity is important," he said, "and getting things in writing adds to clarity. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. <> when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. Knowing When to Request Medical Information, What does "Undue Hardship" mean? This process is initiated either by: The employee's written or verbal request for assistance, or. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. A Deconstructive Series for ADA Terminology, What to Include in Your ADA/Accommodation Toolkit, California Reasonable Accommodation Package, EEOC's Reasonable Accommodation, Establishing Procedures to Facilitate the Provision of, JAN Just-in-Time Module: Interactive Process, U.S. endobj Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. The employer can switch the marginal functions performed by these two employees. }); if($('.container-footer').length > 1){ 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.". Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is Reviewing current vacancies within the department. ADA regulations provide that in order to determine an appropriate reasonable accommodation, it may be necessary for the employer to initiate an informal, interactive process with the individual with a disability in need of the accommodation. 29 C.F.R. The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. As part of this assessment process, the ADA requires that an employer engage in a timely, good-faith and meaningful interactive discussion with the employee.
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