%PDF-1.5 Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. The sample Options Letter may be modified by an appointing power if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { HSmk0nv^- IA}(uNf:$+ifaGM0b_C After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. $("span.current-site").html("SHRM China "); ", "Has that triggered the need for an interactive process? "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.". In response, again citing anxiety and panic attacks resulting from heavy traffic, the plaintiff submitted an accommodation request for a modified in-office schedule, from 7 a.m. to 2 p.m., working from home in the afternoons. At this step, employers should be open to new ideas and new ways of doing things. 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"); Areasonable job accommodationmay include: Heres an example of a reasonable job accommodation: A cleaning crew works in an office building. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. 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. There should be no ambiguity in the explanation of the change. 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. This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. 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. All rights reserved. Court decisions interpreting the ADA provide some general principles. Thats because their request for a new chair isnt related to a medical condition. 200 0 obj <>/Filter/FlateDecode/ID[<5D6158DB4243BF4189442C3921752F86>]/Index[184 39]/Info 183 0 R/Length 86/Prev 194116/Root 185 0 R/Size 223/Type/XRef/W[1 3 1]>>stream Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. What Now? <> endstream endobj startxref Fh^F`h 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. Make use of words in such a way that . hn UVmH nH u hn jD hn U 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. Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? $('.container-footer').first().hide(); While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. Uncertainty from the start. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. The law has helped hundreds of millions of workers in its relatively short history. 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. 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. |^| ", "Clarity is important," he said, "and getting things in writing adds to clarity. An employee's request for Family and Medical Leave Act (FMLA) time off automatically triggers an employer's Americans with Disabilities Act (ADA) obligations, even absent a specific request for . This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. Jonathan E. O'Connell, SHRM-SCP, is a labor and employment attorney practicing with the federal government in Washington, D.C. [Visit SHRM's resource page on theAmericans with Disabilities Act.]. ` 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. var currentUrl = window.location.href.toLowerCase(); Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. If the employee cannot provide the necessary information, then medical documentation can be useful. 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. }); if($('.container-footer').length > 1){ This is particularly true if the employer has no indication the disability is impacting the employees ability to perform his or her essential job functions. This is a request for a reasonable accommodation. The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. Please purchase a SHRM membership before saving bookmarks. 2 0 obj Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. (Marginal functionsare responsibilities that, once altered or removed, dont change the primary purpose of the job.) This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation. "Focus on disclosing only information that is need-to-know. Once an accommodation has been chosen, it is time to implement the accommodation. The most important way to monitor accommodations is to encourage ongoing communication. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. Accommodation options that can be explored, include, but are not limited to: Making existing facilities used by employees readily accessible to and usable by the disabled employee; Acquiring or modifying equipment or devices; Providing qualified readers or interpreters; and. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. The interactive process will look different for everyone. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. Following . The law requires that employees and employers engage in the Interactive Process. IV. III. 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. %PDF-1.5 % Determine if any repair, maintenance, or replacement is necessary to any equipment. } the employees disability and need for accommodation are obvious. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. This documentation may also include the medical practitioners suggestions about potential accommodations. When expanded it provides a list of search options that will switch the search inputs to match the current selection. 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. Should an Accommodation Request Automatically Trigger FMLA? 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.. 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. 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. 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. %%EOF 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. This notice does not need to disclose the employees specific condition. 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. But this all counts as the interactive process. n\3C[% Zappos. temp_style.textContent = '.ms-rtestate-field > p:first-child.is-empty.d-none, .ms-rtestate-field > .fltter .is-empty.d-none, .ZWSC-cleaned.is-empty.d-none {display:block !important;}'; This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. 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. The following situations and solutions are real-life examples of accommodations that were made by JAN customers. 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. 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. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. Please enable scripts and reload this page. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. After an employee requests accommodations, the employer must take the appropriate steps. Understand how these limitations impact their essential job functions. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. 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. 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. 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? Accommodation options will be considered in discussions with the employee. Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. Dont prematurely end the process,"Schwarz said. stream | 1 p.m. {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. An employee submitted an accommodation request for an ergonomic chair due to a back injury. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. Please read our Cookie Notice. 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. hn CJ ) $ % A B c ) * 6 gd] F^F 8&#$$d &d N P )#P &#$$d &d N P a&#$-D(M This includes with or without reasonable accommodation. That there was followup, but that it stayed away from medical details. Essential functionsare the basic job duties that an employee must be able to perform. Employers must also act promptly to initiate this discussion. You have successfully saved this page as a bookmark. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. <> ", The employees request. The ability of employers and their managerial staff to recognize requests is important. Unnecessary delays are a violation of the ADA. Topics covered: National employment laws, harassment, accommodations, training, and more. Here are some recommended steps to include in your checklist. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 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. ", 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. Virtual & Washington, DC | February 26-28, 2023. II. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> A good idea is to include a discussion of the interactive process as part of your ADA policy. ", 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. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. If the employee refuses to make a good faith effort to perform the essential functions of his/her job using a reasonable accommodation offered by the supervisor, the employee and supervisor should re-initiate the Interactive Process, working with the department and the Vocational Rehabilitation group, and Employee Relations to identify alternatives. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. The Office of Diversity, Equity, Inclusion, and Belonging (DEIB) fosters community and engagement for staff, develops programs and experiences for employees to increase their racial literacy and cultural fluency, and is committed to creating a community where all employees can be their authentic selves at work everyday. 1630.2(o)(3). Keep it brief. They are excellent. 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. A large company wanted to standardize all of the accommodation requests it receives. The request had been sitting on one of the desks in the purchasing department. 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. Also, include a closing and a polite signature. Circumstances or the effectiveness of accommodations can change over time. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. Choose someone to ensure that the request for accommodations gets processed. 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. endobj 184 0 obj <> endobj Trello. The interactive process isnt always necessary, though. The important thing for employers to remember is not to ask for too much information. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? 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. A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. 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 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. "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. There areperksto creating a company culture that welcomes employees with disabilities. 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 Please confirm that you want to proceed with deleting bookmark. By using this site, you accept and agree to be bound by these terms. You can update your choices at any time in your settings. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. The EEOC recommends that you analyze the job, its purpose, and its essential functions. The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. No Past Exhibit Booths for Interactive Process. It may also come as a result of administering FMLA leave or a workers compensation claim. After six months, she hadnt heard anything. ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. Keep your message as short as possible. The accommodation [will begin or began] on [date] and end based upon future doctor visits. Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". 0 ' ( 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 Welcome to the newest section of our site - Talent Acquisition! Be open to doing things a different way. Use JAN as needed we are free, and an outside resource. Your session has expired. Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. Learn more in our Cookie Policy. No Upcoming Events for Interactive Process. Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organizations culture, industry, and practices. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? 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. 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. 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. McAfee & Taft A Professional Corporation. "I advise employers to bend over backwards to help somebody who is saying, 'I need some help'for something that might possibly be a disability, whether or not you like the person,"Fram said. If assistance is desired, please call the ACCES Consultant at (858) 888-8888. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. @ A B U V n o z { Employees who are receiving accommodations need to understand that they should let their employers know if there are changes or problems with the accommodation and who specifically to contact. ", Additionally, employers sometimes request or gather too much medical information, Loy said. Your release form states you may return to work with the following medical work restrictions: XXXXXXXXXXXXX An interactive process meeting (can be in person or via telephone) was held on [date] to discuss reasonable accommodations [for you to continue working/for you to return to work] while recovering from your injury. This is a request for reasonable accommodation. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. JANis a free national resource for employers looking for help with accommodations. The employee who requested the accommodation is often the best source of information about the disability and possible accommodations. Let HR Dive's free newsletter keep you informed, straight from your inbox. The Interactive Process can begin in a number of ways. To cope with a paradoxical labor market, HR pros still squarely focused on recruiting may need to re-evaluate role requirements, inclusion initiatives and more. Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." As stated by the Third Circuit Court of Appeals in Taylor v. However, the company offered her the option of leaving work at 4 p.m. Decision-making authority: Department head or designee. Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. } An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. o @ 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. Second, the employer must also have notice of the employees desire to obtain some type of accommodation. hVnF}LwYIn]m2Y$gnVUmP;gJ+Jh1LN[Vx0;(EfxTB-[e MJ r !w2e!CJVF4""5\IexNVr7Zr':A] ;90Zj5RlQJu9MUJrZ?fi%Pz66 ~E>yQ%^4mv2TP4& ^>r9yHk*@bM45Z]{Vx\i#sL#~wTGX*Wd9ElUozj(F$Y~(*L8rp!o_TMYe**5//Z"s5WMo*tpvjgOnaH6>Ia=YLEUp}C|X3rbartqs\A:7rg7J{|Ar#fQ}'>MS *PbX6b=*y/~'JOr!hgT.t-k]%~Ma!ED]J\Q68xE.~2TY$?G!2HSD Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. That the employer has provided what was requested. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. These accommodations are specific to each individuals needs. 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. If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. So when, exactly, does an employer have adequate or sufficient notice to initiate the interactive discussion without receiving a request for accommodation from the employee? + : UNIVERSITY OF CALIFORNIA, SAN DIEGO EMBED Word.Picture.6 SANTA BARBARA ( SANTA CRUZ BERKELEY ( DAVIS ( IRVINE ( LOS ANGELES ( MERCED ( RIVERSIDE ( SAN DIEGO ( SAN FRANCISCO Reasonable Accommodation Agreement Date: Dear [Mr./Ms. 1 0 obj Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. Communication is especially important if youve provided any assistive technology or equipment. 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.