This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); This step is very important to the success of an accommodation. "If there is one, go ahead and just do it." ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. Never assume an employee is disabled. The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. 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. The important thing for employers to remember is not to ask for too much information. 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. This button displays the currently selected search type. 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. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. endobj It may also come as a result of administering FMLA leave or a workers compensation claim. Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. Accommodation options will be considered in discussions with the employee. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. 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.. $("span.current-site").html("SHRM China "); An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? A federal agency recently updated its accommodation policy. hn CJ ) $ % A B c ) * 6 gd] F^F 8&#$$d &d N P )#P &#$$d &d N P a&#$-D(M ta SKN ", Loy agreed that training for front-line supervisors is crucial: Not on the entire ADA," however:"focus on how to recognize when an employee is making an accommodation request.". 1 0 obj "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." 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 employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. There should be no ambiguity in the explanation of the change. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. Ask your employees if they have any thoughts on what might help. The sample Options Letter may be modified by an appointing power NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. Here are some recommended steps to include in your checklist. Be open to doing things a different way. An employer that grants schedule adjustments that aren't required under the Americans with Disabilities Act (ADA) may later stop allowing such changes when the employee declines to help the employer identify a reasonable accommodation, a recent 5th U.S. The request can also come from someone other than the employee. While she did not submit a formal accommodation request, and the company had concerns that she would be unable to perform certain aspects of her job while at home, it nevertheless allowed her to leave the office in the early afternoon and work from her home for the remainder of the day. An important step in the performance review process is choosing the standard for the evaluation. 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. 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. III. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. Welcome to the newest section of our site - Talent Acquisition! [See. e e e e e y y y 8 y * F f* h* h* h* h* h* h* - / Accommodations Beyond Job Performance = Compliance and Inclusion, Changing a Supervisor as an Accommodation under the ADA, Cognitive Impairment and the Interactive Process, Good Deeds Not Punished: Dispelling the Idea of Precedent Setting and the ADA, Out with the Old, In with the NewSupervisor, Providing Temporary Accommodation Solutions, Recognizing an Accommodation Request Under the ADA. $(document).ready(function () { It is with the understanding that after each future doctor visits you will provide a medical update indicating either a release to perform the essential functions of your position or information describing updated functional limitations, so that a determination can be made regarding continuation of the temporary accommodation. |^| The Office of Diversity, Equity, Inclusion, and Belonging (DEIB) fosters community and engagement for staff, develops programs and experiences for employees to increase their racial literacy and cultural fluency, and is committed to creating a community where all employees can be their authentic selves at work everyday. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. Under the ADA, when an employee requests an accommodation and the disability and need for accommodation are not obvious, then the employer can request medical documentation to help determine whether the employee has a disability and needs the requested accommodation and information to help process the accommodation request. o @ hVnF}LwYIn]m2Y$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 Please note that all such forms and policies should be reviewed by your legal . Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. Your Accommodation Request Was Denied. The following list provides some guidelines. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. 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. Keep it brief. Communication is especially important if youve provided any assistive technology or equipment. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. 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. @ A B U V n o z { The supervisor may request that the employee provide written documentation from a licensed medical practitioner, specifying the employees functional limitations as they pertain to the job, without providing diagnostic information. If it is a written letter, include a handwritten signature. When in doubt, ask for clarification on the request and why. endobj ", The employees request. A Department should consider the factors listed in Section III. Step 1 - Create a policy. Douglas Schwarz, a partner with Morgan, Lewis & Bockius LLP, said that recognizing when someone has requested an accommodation is not always an easy thing to do, especially because there's no bright-line event or statement that triggers the employers obligation to participate in the interactive process. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> "Often the request doesn't come until, for example, theres a performance management action thats going on." But the supervisor should have enough training to know when its time to go to HR. hn CJ ji.3 Please log in as a SHRM member before saving bookmarks. The ability of employers and their managerial staff to recognize requests is important. Please read our Cookie Notice. After an employee requests accommodations, the employer must take the appropriate steps. 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. l&#$/ h o u x 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. I ^ b h ) , z |n`n h\ B*OJ QJ ^J ph hn B*OJ QJ ^J ph h\ >*B*OJ QJ ^J ph $h\ h\ >*B*OJ QJ ^J ph $h\ hn >*B*OJ QJ ^J ph hn 56OJ QJ \]^J hn hn B*OJ QJ ^J ph h}R OJ QJ ^J hn OJ QJ ^J hn B*OJ QJ ^J ph hn OJ QJ ^J %6 7 C g S T 0 hFj! 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 description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. Learn more in our Cookie Policy. For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space not why. 4 Take the employee's expressed preferences into consideration. These accommodations are specific to each individuals needs. 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. What Now? 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. Together you can discuss the potential impact of the accommodations. V. If an Employee Declines an Offer of Accommodation, Procedure 36: Classification of Positions, Procedure 60: Layoff and Reduction in Time from Professional and Support Staff Career Positions, Procedure 84: Accommodations for Nursing Mothers, Reasonable Accommodation and the Interactive Process, Family and Medical Leaves of Absence (FMLA/CFRA/PDL), Berkeley Campus Policy/Procedure for Medical Separation, Procedure 84: Accommodations for Nursing Mothers. ; The interactive design is user-friendly and highly engaging. He does not link his need for the new chair with a medical condition. The law requires that employees and employers engage in the Interactive Process. II. Members can get help with HR questions via phone, chat or email. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. Copyright Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. 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. Whenever a supervisor decides not to grant an employee's request for assistance (even when the assistance has not been identified as a request for accommodation of a disability), the best practice is to provide the employee with the campus policies/procedures pertinent to accommodation of employees with disabilities. No Past Recorded Modules for Interactive Process. 1 0 obj %PDF-1.5 endobj This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. 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. 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. 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. This is a request for reasonable accommodation. For example, it is sufficient if the employer receives notice of treatment needed by an employee. "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. Uncertainty from the start. If it is an email, include an email signature with your contact information. 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. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . 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 In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. The checklist and any notes should be maintained in a separate confidential medical file for that employee. Equal Employment Opportunity Commission, For more training and information on the interactive process, see JAN's Just-In-Time Training Module ", For information on the interactive process in relation to service providers, see, No Blog Posts available for Interactive Process. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. 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. Empower your employee to express concerns with their accommodations at any time. If an employee is unable to perform the essential functions of his/her job even when provided reasonable accommodations (to the extent they exist), a Medical Separation may be the appropriate next step. A good idea is to include a discussion of the interactive process as part of your ADA policy. If a Department Decides that the Proposed Accommodation(s) is Unreasonable. (Supervisors should stay out of medical details as much as possible, Fram said.). A large company wanted to standardize all of the accommodation requests it receives. 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. This is considered an accommodation request. However, they may be a useful tool for both employers and employees. 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. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. Employers must also act promptly to initiate this discussion. 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. Before meeting with the employee, review the employee's current job description and any available var currentUrl = window.location.href.toLowerCase(); A Transfer Search, if appropriate, is a continuation of the Interactive Process. So it's important to note that your employee's request doesn't have to be in writing. Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. 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. "Written follow-up in both directions that confirms what the discussion has been. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. It's not a terribly complicated idea, but many employers fall short in the execution. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. Step 3: Get Job Descriptions in Order In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. Circumstances or the effectiveness of accommodations can change over time. 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. }); if($('.container-footer').length > 1){ 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. That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." 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? 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. ("I need an anti-glare screen."). One good approach is to withhold the employees name and identifying information from outside resources. After complaining to her supervisor, the supervisor talked with HR. 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.". Since a new individual took over the ADA Coordinator position for a community college, an effectiveness check for all accommodation approvals is required. "Focus on disclosing only information that is need-to-know. } This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. ' ( 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 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 Never assume an employee is disabled. 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. 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. The following situations and solutions are real-life examples of accommodations that were made by JAN customers. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. 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. *&edtb?iB!+"M@"8hzMC|;q If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. 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. > g  f bjbj 4 X "