Topics covered: National employment laws, harassment, accommodations, training, and more. Essential functionsare the basic job duties that an employee must be able to perform. Learn more about your compensation, benefits and everything that goes into a Total Rewards package. Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. 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. Notice of an employees desire for an accommodation can take a variety of forms, including notice that the employee wants to remain employed (in some capacity). Friends, family, and health professionals can request accommodations on an employees behalf. Fh^F`h The Equal Employment Opportunity Commission (EEOC) enforces the protections provided to employees with disabilities under the Americans with Disabilities Act (ADA). %PDF-1.5 % "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. 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;}'; 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. 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! 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. |^| Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. 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." 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. 18-50053 (Dec. 12, 2018). 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. 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. At this step, employers should be open to new ideas and new ways of doing things. Please read our Cookie Notice. Shortly thereafter, the plaintiff asked her supervisor for a temporary modification to her work schedule that would allow her to leave the office early to avoid panic attacks brought on by stress associated with heavy traffic. 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. ", "Document the whole thing from start to finish either you did the process or you didnt,"he said. If it is an email, include an email signature with your contact information. 1. This is not the case employers are free to try accommodations and stop them if they do not work. 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. hbbd```b``:"kd6di`f0^ X|9$x hH : The law requires that employees and employers engage in the Interactive Process. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is "Written follow-up in both directions that confirms what the discussion has been. By using this site, you accept and agree to be bound by these terms. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 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. 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. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. Ask your employees if they have any thoughts on what might help. After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk. 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. 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.]. Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. For example, it is sufficient if the employer receives notice of treatment needed by an employee. The assistant wanted the employee to sign a blanket medical release. Interactive Process - Freeman Rehabilitation Services These ideas, along with any ideas from the employee and employees medical provider, must be documented. 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. 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. To request permission for specific items, click on the reuse permissions button on the page where you find the item. The employee does not have to formally notify the supervisor or department in writing. Think of theinteractive processas collaborating with your employees to develop accommodations. Never assume an employee is disabled. II. ' ( 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 Should an Accommodation Request Automatically Trigger FMLA? Court decisions interpreting the ADA provide some general principles. A request for assistance or indication by the employee that some corrective measure may need to be taken can be made verbally and casually, as well as formally. Responding to Employee Accommodation Requests under the ADA: Navigating To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. As stated by the Third Circuit Court of Appeals in Taylor v. "If it wont work, you can show you did all you could have done. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. Copyright 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? 4 0 obj These forms included medical inquiry, onboarding, trial, and other process forms. 2 0 obj } Your session has expired. 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. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. (Marginal functionsare responsibilities that, once altered or removed, dont change the primary purpose of the job.) The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. DOCUMENTING CURRENT ACCOMMODATIONS *&edtb?iB!+"M@"8hzMC|;q When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. 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. The interactive process often begins when the employee makes an accommodation request. 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. Make use of positive language and try to remain positive throughout the email. 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. Keep up with the story. 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. This includes information on the essential job functions your employee can and cant do. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. endobj Using the Interactive Process to Reach a Reasonable Accommodation. <>>> (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. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. ADA's Interactive Process Is a Two-Way Street - SHRM 1630.2(o)(3). 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. Following . Here are some recommended steps to include in your checklist. 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. 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. Evaluate whether the employee can perform the job safely. However, they may be a useful tool for both employers and employees. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. 4 The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. 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). > g  f bjbj 4 X " x[OF0Ic{|Y"vB!8$m38t =saOE9/t4d/_u0[,_K1KY3u\p,Q";[N>p '$tB/`;I=`O@b6` {vxsA *;AXN0(/:!Npt"qD?6:u>O3G?Fu0nI hDD1qpa o=^,LT7&Q8`!m+@Y.M7o"ACP9gC0+y=8A+uvoE %}IZ"EwV@_[PZmm[8>^||'=biB@^ru.@{&a[J{h%dyplpy5g}c!@75e! Trello. DOC JAN - Job Accommodation Network You have successfully saved this page as a bookmark. This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation. hVnF}LwYIn]m2Y$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 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. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { That way, no one is surprised when the accommodation is revisited down the road. A human resources assistant was working with an electrician who needed accommodations related to seizures. The interactive process isnt always necessary, though. [See. When expanded it provides a list of search options that will switch the search inputs to match the current selection. Communication is especially important if youve provided any assistive technology or equipment. ", Additionally, employers sometimes request or gather too much medical information, Loy said. The Interactive Process can begin in a number of ways. Please note that all such forms and policies should be reviewed by your legal . After six months, she hadnt heard anything. Members may download one copy of our sample forms and templates for your personal use within your organization. PDF Sample Options Letter for Resolving Medical/Employment Issues - California Employees can start the. 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. 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. Understand how these limitations impact their essential job functions. That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." This agreement should be documented. One good approach is to withhold the employees name and identifying information from outside resources. If an accommodation is not considered reasonable, refer to Sections IV and V below. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. The interactive process will look different for everyone. hn UVmH nH u hn jD hn U 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. <> endobj A federal agency recently updated its accommodation policy. Another EEOC recommendation is to consider the employees preference. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. PDF Request for Accommodation Interactive Process Checklist Form to Be Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. This is the time to brainstorm and consider what might work. 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. If the accommodation involves a schedule change or policy modification, then certain managers or supervisors may need to know of the change to effectively implement it. An employee submitted an accommodation request for an ergonomic chair due to a back injury. "Often the request doesn't come until, for example, theres a performance management action thats going on." Since a new individual took over the ADA Coordinator position for a community college, an effectiveness check for all accommodation approvals is required. 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. A Department should consider the factors listed in Section III. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. Accommodation options will be considered in discussions with the employee. 222 0 obj <>stream There should be no ambiguity in the explanation of the change. EEOC Informal Discussion Letter 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. Reviewing current vacancies within the department. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? This area cover the performance management review program 'Achieve Together' and the Foundational Skills program. The interactive process can begin when the employee makes the request. Employee Letter and Email Examples - The Balance Careers If assistance is desired, please call the ACCES Consultant at (858) 888-8888. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. 1 0 obj Then select the most appropriate accommodation for you and your employee. This is a request for reasonable accommodation. Members can get help with HR questions via phone, chat or email. Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. Necessary information may include documentation of the disability and need for accommodation. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. However, unless the disability or the need for accommodation is obvious, it is the responsibility of the employee to inform the supervisor that an accommodation is needed in order to perform the essential job functions, or to receive equal benefits and privileges of employment. This notice does not need to disclose the employees specific condition. 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. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. Circumstances or the effectiveness of accommodations can change over time. You can even have a trial period whenever theres doubt that an accommodation will be a good fit. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. 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. 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. Also, include a closing and a polite signature. 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. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. Take the employee's expressed preferences into consideration. 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. That there was followup, but that it stayed away from medical details. Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? The marginal functions of a second crew member include cleaning the small kitchen in the employee's lounge, which is something the first crew member can perform. Dont prematurely end the process,"Schwarz said. 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. Keep your message as short as possible. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. 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. 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 employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. | 1 p.m. Choose someone to ensure that the request for accommodations gets processed. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. 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. EEOC: Medical Leave Request Initiates ADA Obligations - SHRM
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