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. A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. No Past Exhibit Booths for Interactive Process. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. ", 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. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { Please read our Cookie Notice. The accommodation [will begin or began] on [date] and end based upon future doctor visits. Also, include a closing and a polite signature. Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. Accommodation and Compliance: Interactive Process, EEOC (Reasonable Accommodation and Undue Hardship (EEOC Guidance), JAN's Effective Accommodation Practice Series: Interactive Process and Service Providers, Employers' Practical Guide to Reasonable Accommodation Under the Americans with Disabilities Act (ADA), Employers' Practical Guide: Reasonable Accommodation During the Hiring Process, Addressing Requests for Sit/Stand Workstations, Best Practices for Addressing Requests for Ergonomic Chairs, Making a Statement About Reasonable Accommodation and Equal Opportunity, Providing Temporary or Trial Accommodation Solutions, Recertifying the Ongoing Need for Accommodation, Using Third-Party Vendors to Process Accommodation Requests. Choose someone to ensure that the request for accommodations gets processed. Pay careful attention to medical-related issues employees bring to your attention. 4 0 obj 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. In order for the practitioner to provide a knowledgeable recommendation, the job description with the essential assigned duties annotated and a PEM form for the job should be provided to the employee to give to her/his practitioner. Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. This is a request for a reasonable accommodation. Don't hide your interactive process requirement, rather publicize it. stream As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. Necessary information may include documentation of the disability and need for accommodation. Work with your employee to understand their specific challenges or limitations. 2 0 obj The important thing for employers to remember is not to ask for too much information. Titled " The Zappos Culture Book ," this handbook highlights the company's dedication to workplace culture. 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. ` For example, if an employee who uses a wheelchair requests that his desk be placed on blocks to elevate the desktop above the arms of the wheelchair and the employer complies, an appropriate accommodation has been requested, identified, and provided without the need for a formal process. Fh^F`h However, unless the disability or the need for accommodation is obvious, it is the responsibility of the employee to inform the supervisor that an accommodation is needed in order to perform the essential job functions, or to receive equal benefits and privileges of employment. The following persons will be present at this meeting: [names of meeting participants]. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. Let HR Dive's free newsletter keep you informed, straight from your inbox. It may also come as a result of administering FMLA leave or a workers compensation claim. Virtual & Washington, DC | February 26-28, 2023. Reviewing current vacancies within the department. 1 0 obj Dont assume that thecosts of providing the accommodationwill be too expensive. But the FMLA doesnt provide paid leave, and employers say it can be difficult to administer. However, they may be a useful tool for both employers and employees. 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. Step 1 - Create a policy. 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This notice does not need to disclose the employees specific condition. Learn more about your compensation, benefits and everything that goes into a Total Rewards package. xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. If there is any question concerning the nature of the limitation or appropriateness of an accommodation being considered, the supervisor should consult with the Vocational Rehabilitation Counselor in University Health Services. Learn more in our Cookie Policy. Please purchase a SHRM membership before saving bookmarks. x[OF0Ic{|Y"vB!8$m38t =saOE9/t4d/_u0[,_K1KY3u\p,Q";[N>p '$tB/`;I=`O@b6` {vxsA *;AXN0(/:!Npt"qD?6:u>O3G?Fu0nI hDD1qpa o=^,LT7&Q8`!m+@Y.M7o"ACP9gC0+y=8A+uvoE %}IZ"EwV@_[PZmm[8>^||'=biB@^ru.@{&a[J{h%dyplpy5g}c!@75e! Time Warner Cable Texas LLC hired the plaintiff in October 2012 as a workforce analyst. When expanded it provides a list of search options that will switch the search inputs to match the current selection. The interactive process isnt always necessary, though. (800) 526-7234 (Voice) | (877) 781-9403 (TTY) | Employer Live Chat, Home| About| For Employers| For Individuals| For Others| On Demand, Feedback| Accessibility| Copyright| Disclaimer| Privacy. endstream endobj 185 0 obj <>/Metadata 16 0 R/Pages 182 0 R/StructTreeRoot 32 0 R/Type/Catalog>> endobj 186 0 obj <>/MediaBox[0 0 612 792]/Parent 182 0 R/Resources<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI]>>/Rotate 0/StructParents 0/Tabs/S/Type/Page>> endobj 187 0 obj <>stream The interactive process can begin when the employee makes the request. Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. A federal agency recently updated its accommodation policy. It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. 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. Need help with a specific HR issue like coronavirus or FLSA? Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. All rights reserved. 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. Employers must initiate an "interactive process" when an applicant or employee requests reasonable accommodations. A large company wanted to standardize all of the accommodation requests it receives. 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. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. In this regard, the court observed that Time Warner had "a record of granting [the plaintiff's] numerous accommodation and FMLA leave requests back to 2013, even when it was not required to do so by law. The following is a brief summary of the Interactive Process: Step 1 Invite the employee to participate in assessing return-to-work options and alternatives The CA Dept. Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. % So it's important to note that your employee's request doesn't have to be in writing. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. the employees disability and need for accommodation are obvious. That the employer has provided what was requested. 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. 2023 And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. Never assume an employee is disabled. <> 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. Members may download one copy of our sample forms and templates for your personal use within your organization. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. You can even have a trial period whenever theres doubt that an accommodation will be a good fit. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? 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. In June 2013, the plaintiff made an accommodation request under the ADA to lie down while at work due to dizzy spells related to her pregnancy. The EEOC recommends that you analyze the job, its purpose, and its essential functions. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. To request permission for specific items, click on the reuse permissions button on the page where you find the item. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. $("span.current-site").html("SHRM China "); This is the time to brainstorm and consider what might work. Circumstances or the effectiveness of accommodations can change over time. II. This documentation may also include the medical practitioners suggestions about potential accommodations. However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. The supervisor should consult with the employee to find out his or her specific physical or mental abilities and limitations as they relate to the essential job functions, and to discuss the employees preferences with regard to accommodations. This area cover the performance management review program 'Achieve Together' and the Foundational Skills program. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. However, in other cases the individual may know that he/she is having difficulty, but may be uncertain about the exact cause or possible solution. No Past Recorded Modules for Interactive Process. 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. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. hn U ji.3 "Its hard to convince a jury or agency that an essential function truly is an essential function if its not in the job description, or if other employees in the role weren't performing it. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. Shortly thereafter, the company terminated the plaintiff's employment after she failed to report to work due to child care issues. Reasonable accommodation can include, but is not limited to, the following: Employees with disabilities may have separate rights to unpaid leave under the Federal Family and Medical Leave Act or the California Family Rights Act. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. ", Often, supervisors don't recognize an accommodation request or ignore the request, according to Beth Loy, principal consultant with the Job Accommodation Network (JAN), a program funded by a contract with U.S. Department of Labor's Office of Disability Employment Policy. Together you can discuss the potential impact of the accommodations. Ask your employees if they have any thoughts on what might help. Therefore, any time an employee indicates that he/she is having a problem and the problem is related to a medical condition, the employer should consider whether the employee is making a request for accommodation under the ADA. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. The procedures apply for employees covered by the Americans with Disabilities Act (ADA), The California Fair Employment and Housing Act and/or Sections 503/504 of the 1973 Rehabilitation Act. There may be times when the appropriate accommodation is obvious. If you know an employee with a disability has a need, you can begin the interactive process in good faith. Let's say you have an employee that uses a wheelchair. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. 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. This is a request for a reasonable accommodation. For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. The request doesnt have to include any specific terminology. The employer can switch the marginal functions performed by these two employees. 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. The law requires that employees and employers engage in the Interactive Process. "You rarely see an . It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. endobj Please log in as a SHRM member before saving bookmarks. Take the employee's expressed preferences into consideration. % 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. 0 var temp_style = document.createElement('style'); The employee does not need to use any magic language when making the request, and need not reference the ADA or specifically use the term reasonable accommodation. This notice triggers the employers obligation to initiate the interactive process. Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. Before meeting with the employee, review the employee's current job description and any available If a disability precludes an employee from performing one or more essential job functions, the Department and employee, in consultation with Vocational Rehabilitation, Employee Relations, and other offices as necessary, should begin the Interactive Process. The interactive design is user-friendly and highly engaging. As part of this process, the EEOC recommends that employers: (1) Analyze the particular job involved and determine its purpose and essential functions; (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation; (3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and. Select Accept to consent or Reject to decline non-essential cookies for this use. ; The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. 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. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . 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. Dont prematurely end the process,"Schwarz said. Fram said he sees the same problem. Asking for all medical records will rarely, if ever, meet this test. That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." When in doubt, ask for clarification on the request and why. Remember to only ask for the necessary medical information. A Transfer Search, if appropriate, is a continuation of the Interactive Process. The most important way to monitor accommodations is to encourage ongoing communication. The EEOCs recommended starting point is to use an interactive process once a request has been made. The request can also come from someone other than the employee. hn CJ ji.3 When the need isn't obvious, more information will be helpful when discussing accommodations. o @ No Remote Monthly Series Training for Interactive Process. <> Be open to doing things a different way. Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. Please note that all such forms and policies should be reviewed by your legal . n\3C[% "The interactive process is such an important step for employers," he told HR Dive, and "its totally in the employers control to get right or mess up. Here are seven common mistakes. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. For example, if an employee has a couple of doctors appointments during the next few weeks and needs to come in a little late, let the person do it. endobj Streamlining the Interactive Process When Accommodating Job Applicants, Tell 'Em About It: Educating the Workforce about the ADA & Accommodations, To Ask, or Not to Ask? Never assume an employee is disabled. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. Communication is especially important if youve provided any assistive technology or equipment. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. JAN offers the following additional information and tips for the interactive process, starting with the accommodation request: The interactive process starts with an accommodation request from an employee with a disability so it is important for employers to be able to recognize a request. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. 1630.2(o)(3). IV. Employees can start the. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. 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. Unnecessary delays are a violation of the ADA. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRMs permission. The sample Options Letter may be modified by an appointing power "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. Using the Interactive Process to Reach a Reasonable Accommodation. Finally, the employee says, "I'm really having trouble getting out of bed in the morning. " An important step in the performance review process is choosing the standard for the evaluation. HSmk0nv^- IA}(uNf:$+ifaGM0b_C ("I need an anti-glare screen."). The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? 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. 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. Make a request for an accommodation verbally, in writing, and/or using one of the above methods, to the RARC, the agency Workplace Equality Compliance Officer (WECO), a Deciding Official (typically the first line supervisor/manager), the servicing human resources office, or any agency employee connected with the job application process, as

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