And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). 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. An important step in the performance review process is choosing the standard for the evaluation. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. 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. Keep it brief. This process is initiated either by: The employee's written or verbal request for assistance, or. The interactive process isnt always necessary, though. Accommodation options will be considered in discussions with the employee. Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". Ask your employees if they have any thoughts on what might help. If the employee requests a type of assistance the supervisor may simply provide it (without any reference to whether the request is disability-related), or the supervisor may ask if the assistance is being requested as an accommodation to a disability (and if the response is affirmative, proceed under campus procedures for accommodating employees with disabilities). The request doesnt have to include any specific terminology. A human resources assistant was working with an electrician who needed accommodations related to seizures. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. <> % The Interactive Process can begin in a number of ways. If it is a written letter, include a handwritten signature. Zappos. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. endobj Step 1 - Create a policy. 4 The ability of employers and their managerial staff to recognize requests is important. The employee does not have to formally notify the supervisor or department in writing. Welcome to the newest section of our site - Talent Acquisition! What Now? Second, the employer must also have notice of the employees desire to obtain some type of accommodation. This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". Choose someone to ensure that the request for accommodations gets processed. <> "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. Titled " The Zappos Culture Book ," this handbook highlights the company's dedication to workplace culture. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space not why. 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. 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. This notice does not need to disclose the employees specific condition. 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. Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. stream %PDF-1.5 % Dont assume that thecosts of providing the accommodationwill be too expensive. Please purchase a SHRM membership before saving bookmarks. 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. z0#D0v[{qL*Aoco; tY-bGG[!8^N^1swy QZU^BL@z6xWbt aQ"(4^+(4`V@91&jE,_C5lRqk_h:f.tlZr.9gO(t"w#\O #*^]]7j]" :It)Rf!n', if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. 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. Step 3: Get Job Descriptions in Order var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); However, the company offered her the option of leaving work at 4 p.m. 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;}'; 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. wy}v%,V(f8T8b@c9\8u8K C17+Y:AB9*8r3wBA=kXP2c#:y]fJupQ0@@/I(-qRC> .1FENSSbi/8fkc//`Ny!6rO"Rd0Z7jN)43/WU!HN(tj&]l Virtual & Washington, DC | February 26-28, 2023. } Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. LinkedIn and 3rd parties use essential and non-essential cookies to provide, secure, analyze and improve our Services, and to show you relevant ads (including professional and job ads) on and off LinkedIn. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. @ 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. "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. 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. 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. n\3C[% 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. A Department should consider the factors listed in Section III. 2 0 obj Keep your message as short as possible. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? 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. 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. 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. 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. This includes with or without reasonable 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. Determine if any repair, maintenance, or replacement is necessary to any equipment. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. h* e N N N h* e e }* N e e f* N f* r ) T * y d b) R* * 0 * p) 0 v p 0 * 0 e * D 8 t h* h* * N N N N 0 " - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? Decision-making authority: Department head or designee. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. Empower your employee to express concerns with their accommodations at any time. 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. DOCUMENTING CURRENT ACCOMMODATIONS The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. There areperksto creating a company culture that welcomes employees with disabilities. "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. 2 0 obj SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. The accommodation [will begin or began] on [date] and end based upon future doctor visits. 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. The employer can switch the marginal functions performed by these two employees. Subscribe to the HR Dive free daily newsletter, Subscribe to HR Dive for top news, trends & analysis, The free newsletter covering the top industry headlines, Tango Introduces New Batch Blur Functionality, SocialTalent Launches The SocialTalent Academy: A Professional Certification Program for Recru, Talkspace Launches First-of-its-Kind Portal Dedicated to Employee Mental Health Resources, Talent Attraction and Retention for 2023: Finance and HR leaders should look to on-demand pay,, By signing up to receive our newsletter, you agree to our, Webinar The person writing the email should make sure that the change in process is communicated clearly. endobj That way, no one is surprised when the accommodation is revisited down the road. First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. Reasonable Accommodation - National Association of Letter Carriers AFL-CIO 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. Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. 184 0 obj <> endobj 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. After complaining to her supervisor, the supervisor talked with HR. Here are some recommended steps to include in your checklist. "Often the request doesn't come until, for example, theres a performance management action thats going on." The following list provides some guidelines. endobj Employers must initiate an "interactive process" when an applicant or employee requests reasonable accommodations. The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. 3 0 obj 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. This is a request for reasonable accommodation. That there was followup, but that it stayed away from medical details. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. Knowing When to Request Medical Information, What does "Undue Hardship" mean? xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. 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. endstream endobj 188 0 obj <>stream Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. Dont prematurely end the process,"Schwarz said. This is considered an accommodation request. Employees Responsibilities: Work within the written medical limitations Provide medical updates of functional limitations If taken off work by your doctor, notify supervisor and [name], ACCES Specialist. Evaluate whether the employee can perform the job safely. The standard of proof required here is low: when an employee continues to come to work, and continues to perform at least some of his or her essential duties, employers are encouraged to proceed with the interactive process. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. 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.". 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. For example, it is sufficient if the employer receives notice of treatment needed by an employee. Should an Accommodation Request Automatically Trigger FMLA? The EEOC recommends that you analyze the job, its purpose, and its essential functions. 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. endobj The assistant wanted the employee to sign a blanket medical release. |^| Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. endobj Once again, the company agreed and allowed her to work from home from March 2014 until December 2014. Thats because their request for a new chair isnt related to a medical condition. The following persons will be present at this meeting: [names of meeting participants]. endobj The checklist and any notes should be maintained in a separate confidential medical file for that employee. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. This is a request for a reasonable accommodation. Please read our Privacy Notice, Terms of Use, Cookie Notice, CCPA Notice, and Website Accessibility Policy. Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. JANis a free national resource for employers looking for help with accommodations. " No Past In-Person Trainings for Interactive Process. Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. Reviewing current vacancies within the department. 1 0 obj If an accommodation is not considered reasonable, refer to Sections IV and V below. These ideas, along with any ideas from the employee and employees medical provider, must be documented. ("I need an anti-glare screen."). 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. 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. Once youve identified an accommodation request, its best to take action immediately. As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. Its a good idea to touch base with your employee on how things are going. Unnecessary delays are a violation of the ADA. 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. You can even have a trial period whenever theres doubt that an accommodation will be a good fit. If there is no solution, the best thing is your documentation showing that you did explore accommodation options. h\ CJ The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. Once accommodation options have been explored, the employer must choose what accommodation to implement. You can update your choices at any time in your settings. [SHRM members-only toolkit:Accommodating Employees' Disabilities], In holding that the ADA discrimination and FMLA retaliation claims could not proceed to trial, the court noted the company's legitimate basis for its termination decisionnamely, excessive absenteeism and the well-established principle that "an employee's failure to show up for work is a legitimate reason for firing her." Here at UC Berkeley, we value your growth and development throughout your career journey. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. 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." e e e e e y y y 8 y * F f* h* h* h* h* h* h* - / If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. By using this site, you accept and agree to be bound by these terms. Remember to only ask for the necessary medical information. Please enable scripts and reload this page. Understand how these limitations impact their essential job functions. One good approach is to withhold the employees name and identifying information from outside resources. Other resources, such as the Job Accommodations Network (JAN), or your employee's medical provider, can give suggestions. This button displays the currently selected search type. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. Fram said he sees the same problem. Let HR Dive's free newsletter keep you informed, straight from your inbox. %PDF-1.5 $('.container-footer').first().hide(); Topics covered: Employee learning, training, onboarding, mentoring, career development and more. 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. 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. The request can also come from someone other than the employee. Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. Need help with a specific HR issue like coronavirus or FLSA? This is not the case employers are free to try accommodations and stop them if they do not work. While employers may have policies instructing their employees to provide written notice of the need for an accommodation, the employer cannot ignore verbal, visual or other cues. 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. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. Fh^F`h Make use of words in such a way that . All rights reserved. When in doubt, ask for clarification on the request and why. ", The employees request. This agreement should be documented. The interactive design is user-friendly and highly engaging. Take the employee's expressed preferences into consideration. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. Think of theinteractive processas collaborating with your employees to develop accommodations. 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! (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. hn CJ ji.3 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. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. 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 Members can get help with HR questions via phone, chat or email. 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 . However, they may be a useful tool for both employers and employees. The important thing for employers to remember is not to ask for too much information. If there is more than one option, the employer should consider the preference of the employee. 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. 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. 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. 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? Any extension of this agreement beyond this will be decided on a case-by-case basis and will be dependent upon additional information from your doctor and upon the needs of the department at that time. 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. If the employee cannot provide the necessary information, then medical documentation can be useful. That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. This includes information on the essential job functions your employee can and cant do. ", 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. *&edtb?iB!+"M@"8hzMC|;q ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I?