That the supervisor didn't ask anything medical. "You rarely see an employee who knows about the ADA and asks for a reasonable accommodation," he told HR Dive;"You need to start the process even if they havent used any magic words. Dont prematurely end the process,"Schwarz said. 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. When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. Together you can discuss the potential impact of the 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. The purpose of an accommodation is to enable the employee to perform the essential functions of the job. Please note that all such forms and policies should be reviewed by your legal . ", "Document the whole thing from start to finish either you did the process or you didnt,"he said. In some cases, an accommodation stops being effective for various reasons such as: the employees limitations change, workplace equipment changes, the job changes, the workplace itself changes, or the accommodation becomes an undue hardship for the employer. Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. The 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. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 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. Circumstances or the effectiveness of accommodations can change over time. 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. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. When expanded it provides a list of search options that will switch the search inputs to match the current selection. This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. Once youve identified an accommodation request, its best to take action immediately. Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. At this step, employers should be open to new ideas and new ways of doing things. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. Another EEOC recommendation is to consider the employees preference. This step is very important to the success of an accommodation. 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. endobj 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 EEOCs recommended starting point is to use an interactive process once a request has been made. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. The interactive process can begin when the employee makes the request. The request can also come from someone other than the employee. This documentation may also include the medical practitioners suggestions about potential accommodations. %PDF-1.5 Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. &. For example, it is sufficient if the employer receives notice of treatment needed by an employee. 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 B U V n o z { Pay careful attention to medical-related issues employees bring to your attention. Never assume an employee is disabled. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. 18-50053 (Dec. 12, 2018). 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. ", "Clarity is important," he said, "and getting things in writing adds to clarity. Titled " The Zappos Culture Book ," this handbook highlights the company's dedication to workplace culture. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. 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. Communication is especially important if youve provided any assistive technology or equipment. No Remote Monthly Series Training for Interactive Process. Keep your message as short as possible. Your Employee & Labor Relations team now supports both represented and non-represented employees. (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. 4 Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. endstream endobj startxref 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. 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. 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 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. When the need isn't obvious, more information will be helpful when discussing accommodations. This button displays the currently selected search type. 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. 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. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. Adobe PDF viewer is required for some of these documents. Members may download one copy of our sample forms and templates for your personal use within your organization. 2 0 obj As stated by the Third Circuit Court of Appeals in Taylor v. %PDF-1.5 % 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." III. Then select the most appropriate accommodation for you and your employee. You have successfully saved this page as a bookmark. However, in keeping with the spirit of the interactive process, an employee who is struggling to adequately perform should be asked if there is any type of assistance that might enable the employee to better perform his/her job functions and, along with other material describing employee support resources, the employee should be given information about campus policies/procedures applicable to employees with disabilities. hn UVmH nH u hn jD hn U "Written follow-up in both directions that confirms what the discussion has been. e e e e e y y y 8 y * F f* h* h* h* h* h* h* - / The sample Options Letter may be modified by an appointing power Make use of words in such a way that . You can update your choices at any time in your settings. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. 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. According to the EEOC, the interactive process is not always required under the ADA. If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance. 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. Zappos. Essential functionsare the basic job duties that an employee must be able to perform. <> IV. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. The interactive process is a conversation between an employer and an employee to determine if the employee requires a reasonable accommodation to perform the essential functions of their job and if so, what the accommodation (s) may be. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. Time Warner Cable Texas LLC hired the plaintiff in October 2012 as a workforce analyst. 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 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.]. The EEOCs Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act provides that as a general rule, the individual with a disability who has the most knowledge about the need for reasonable accommodation must inform the employer than an accommodation is needed. The request can be made verbally or in writing. stream 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 Americans with Disabilities Act (ADA) requires covered employers to provide effective, reasonable accommodations for employees with disabilities. Topics covered: National employment laws, harassment, accommodations, training, and more. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." Trello. An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. 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. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. A human resources assistant was working with an electrician who needed accommodations related to seizures. 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. If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. Circuit Court of Appeals decision shows. Reviewing current vacancies within the department. 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. The request had been sitting on one of the desks in the purchasing department. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. The original accommodation was a "transitional accommodation," that is it was intended for a specifically defined purpose and time period has elapsed; The employee indicates that a new accommodation may be necessary; or. % In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. The Interactive Process can begin in a number of ways. hn U ji.3 After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk. That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." ", 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.". Step 1 - Create a policy. The company was able to edit these forms to fit its needs. The interactive process often begins when the employee makes an accommodation request. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. 1 0 obj Ask your employees if they have any thoughts on what might help. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. Your Accommodation Request Was Denied. endobj Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? A Transfer Search, if appropriate, is a continuation of the Interactive Process. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. h\ CJ When a request is made, employers should first look for a quick, simple and easy solution,Fram said. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. An employee submitted an accommodation request for an ergonomic chair due to a back injury. Using the Interactive Process to Reach a Reasonable Accommodation. The person writing the email should make sure that the change in process is communicated clearly. hbbd```b``:"kd6di`f0^ X|9$x hH : 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.. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. Welcome to the newest section of our site - Talent Acquisition! After an employee requests accommodations, the employer must take the appropriate steps. 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 important thing for employers to remember is not to ask for too much information. }); if($('.container-footer').length > 1){ In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. 2023 Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. Unnecessary delays are a violation of the ADA. ", "Has that triggered the need for an interactive process? "I advise employers to bend over backwards to help somebody who is saying, 'I need some help'for something that might possibly be a disability, whether or not you like the person,"Fram said. In December 2014, the plaintiff's new supervisor made it clear that in the absence of an approved accommodation under the ADA, she was expected to be in the office beginning in the new year. For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. Make use of positive language and try to remain positive throughout the email. " Here are some recommended steps to include in your checklist. Necessary information may include documentation of the disability and need for accommodation. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. And if still more ideas are needed, then the employer should consult with outside resources such as JAN, vocational rehabilitation, rehabilitation engineers, and disability-related organizations. If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. x[OF0Ic{|Y"vB!8$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! After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. ", "When implementing an accommodation, supervisors sometimes disclose medical information,"Loy said. the employees disability and need for accommodation are obvious. Learn more in our Cookie Policy. (Marginal functionsare responsibilities that, once altered or removed, dont change the primary purpose of the job.) The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. The accommodation [will begin or began] on [date] and end based upon future doctor visits. 1. Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. Let HR Dive's free newsletter keep you informed, straight from your inbox. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). Reasonable Accommodation - National Association of Letter Carriers AFL-CIO hn CJ ) $ % A B c ) * 6 gd] F^F 8&#$$d &d N P )#P &#$$d &d N P a&#$-D(M An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. endobj The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. 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. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Second, the employer must also have notice of the employees desire to obtain some type of accommodation. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); No Past In-Person Trainings for Interactive Process. II. This is the time to brainstorm and consider what might work. 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.