18-50053 (Dec. 12, 2018). Employees can start the interactive process using any form, including verbal communication. 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. } Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. II. 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. As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. Friends, family, and health professionals can request accommodations on an employees behalf. 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 use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. <> The EEOCs recommended starting point is to use an interactive process once a request has been made. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. Professional Pointer: Employee use of FMLA leave, particularly when the leave taken is intermittent, can be one of the more challenging leave-related situations employers face. Dont assume that thecosts of providing the accommodationwill be too expensive. The employee does not need to use any magic language when making the request, and need not reference the ADA or specifically use the term reasonable accommodation. This notice triggers the employers obligation to initiate the interactive process. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. IV. The employee who requested the accommodation is often the best source of information about the disability and possible accommodations. 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. var currentUrl = window.location.href.toLowerCase(); endstream endobj startxref 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. But the FMLA doesnt provide paid leave, and employers say it can be difficult to administer. In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. The Interactive Process can begin in a number of ways. The following situations and solutions are real-life examples of accommodations that were made by JAN customers. %PDF-1.5 Knowing When to Request Medical Information, What does "Undue Hardship" mean? 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? Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. 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. All rights reserved. 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. Take the employee's expressed preferences into consideration. 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. (For example, "I'm getting headaches from the glare from my computer screen. Thats because their request for a new chair isnt related to a medical condition. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. <> If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance. 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). $("span.current-site").html("SHRM China "); 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. Never assume an employee is disabled. ", "Document the whole thing from start to finish either you did the process or you didnt,"he said. 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. Your Employee & Labor Relations team now supports both represented and non-represented employees. Virtual & Washington, DC | February 26-28, 2023. 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. If assistance is desired, please call the ACCES Consultant at (858) 888-8888. This documentation may also include the medical practitioners suggestions about potential accommodations. 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. Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? As stated by the Third Circuit Court of Appeals in Taylor v. 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. According to the EEOC, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation" when requesting an accommodation. 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. The law requires that employees and employers engage in the Interactive Process. A JAN consultant explained the interactive process, that the employee's disclosure is a request for accommodation, and shared JAN's Sample Reasonable Accommodation Request Form for Employers to provide to the employee, in order to clarify and document her accommodation needs. An employee submitted an accommodation request for an ergonomic chair due to a back injury. Make use of words in such a way that . 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! Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. Circumstances or the effectiveness of accommodations can change over time. If it is a written letter, include a handwritten signature. endobj 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 not the case employers are free to try accommodations and stop them if they do not work. Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. ", Often, supervisors don't recognize an accommodation request or ignore the request, according to Beth Loy, principal consultant with the Job Accommodation Network (JAN), a program funded by a contract with U.S. Department of Labor's Office of Disability Employment Policy. Decision-making authority: Department head or designee. stream You have successfully saved this page as a bookmark. endobj Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. III. That there was followup, but that it stayed away from medical details. 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 Jonathan E. O'Connell, SHRM-SCP, is a labor and employment attorney practicing with the federal government in Washington, D.C. [Visit SHRM's resource page on theAmericans with Disabilities Act.]. If an accommodation is not considered reasonable, refer to Sections IV and V below. 1 0 obj The EEOC recommends that you analyze the job, its purpose, and its essential functions. The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. 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. Members can get help with HR questions via phone, chat or email. 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. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? Find the latest news and members-only resources that can help employers navigate in an uncertain economy. e e e e e y y y 8 y * F f* h* h* h* h* h* h* - / [See. Please enable scripts and reload this page. " These ideas, along with any ideas from the employee and employees medical provider, must be documented. (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. HSmk0nv^- IA}(uNf:$+ifaGM0b_C A human resources assistant was working with an electrician who needed accommodations related to seizures. %%EOF Once the employer has identified the employees limitation that is causing a problem and has identified what that problem is, then the employer is ready to explore accommodation options. Need help with a specific HR issue like coronavirus or FLSA? 4 Titled " The Zappos Culture Book ," this handbook highlights the company's dedication to workplace culture. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. Once an accommodation has been chosen, it is time to implement the accommodation. 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. Another EEOC recommendation is to consider the employees preference. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u No Upcoming Events for Interactive Process. } Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. [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." 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. The following list provides some guidelines. Never assume an employee is disabled. Ultimately, she refused this proposal and instead sought intermittent FMLA leave that would allow her to leave at 2 p.m., and she immediately adjusted her schedule accordingly. 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. 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. 2 0 obj ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. Following . In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. No Past Exhibit Booths for Interactive Process. Work with your employee to understand their specific challenges or limitations. hn U ji.3 hn CJ ji.3 Reasonable Accommodation - National Association of Letter Carriers AFL-CIO <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 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. Its a good idea to touch base with your employee on how things are going. 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. Determine if any repair, maintenance, or replacement is necessary to any equipment. This notice does not need to disclose the employees specific condition. 4 0 obj Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. This includes information on the essential job functions your employee can and cant do. 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. Topics covered: National employment laws, harassment, accommodations, training, and more. Whether sending an email or letter, add a professional greeting that includes the person's name. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. 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. } Keep up with the story. 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. 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. n\3C[% But this all counts as the interactive process. The request doesnt have to include any specific terminology. 1. | 1 p.m. 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. Learn more about your compensation, benefits and everything that goes into a Total Rewards package. 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. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." 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. A federal agency recently updated its accommodation policy. The law has helped hundreds of millions of workers in its relatively short history. If the employee cannot provide the necessary information, then medical documentation can be useful. The interactive process can begin when the employee makes the request. Your session has expired. 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. Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. Please purchase a SHRM membership before saving bookmarks. Ask your employees if they have any thoughts on what might help. 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. The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. The following persons will be present at this meeting: [names of meeting participants]. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. 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. "Interactive Process Checklist" any time they talk to the employee regarding these issues. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. The assistant wanted the employee to sign a blanket medical release. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. Many employers dont want to, because they dont want to hear what JAN says, but you can be sure that if youre sued the employees lawyer will be calling JAN. You cant hide your head in the sand on this. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { But Fram also advises documenting the following: If there isnt a quick fix, Fram said, then the formal ADA process should started "not by supervisors, but by HR or legal. The request had been sitting on one of the desks in the purchasing department. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. (800) 526-7234 (Voice) | (877) 781-9403 (TTY) | Employer Live Chat, Home| About| For Employers| For Individuals| For Others| On Demand, Feedback| Accessibility| Copyright| Disclaimer| Privacy. The ability of employers and their managerial staff to recognize requests is important. Employees can start the. hn UVmH nH u hn jD hn U "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." The interactive process isnt always necessary, though. "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. Once again, the company agreed and allowed her to work from home from March 2014 until December 2014. For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. 4 0 obj When a request is made, employers should first look for a quick, simple and easy solution,Fram said. "Often the request doesn't come until, for example, theres a performance management action thats going on." Pay careful attention to medical-related issues employees bring to your attention. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. If there is more than one option, the employer should consider the preference of the employee. "Focus on disclosing only information that is need-to-know. 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. }); if($('.container-footer').length > 1){ The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. Your Accommodation Request Was Denied. This button displays the currently selected search type. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . 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. 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. 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 Using the Interactive Process to Reach a Reasonable Accommodation. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. Let HR Dive's free newsletter keep you informed, straight from your inbox. Keep your message as short as possible. So it's important to note that your employee's request doesn't have to be in writing. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. It may also come as a result of administering FMLA leave or a workers compensation claim. <>>> Members may download one copy of our sample forms and templates for your personal use within your organization. If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. 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. "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an 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. Before sharing any final decision with the employee, the Department should consult with the Disability Case Management Counselor, Employee Relations and the Departmental Human Resources Manager. 184 0 obj <> endobj Understand how these limitations impact their essential job functions. Be open to doing things a different way. The person writing the email should make sure that the change in process is communicated clearly. Make use of positive language and try to remain positive throughout the email. ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. the employees disability and need for accommodation are obvious. 1630.2(o)(3). HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. If a disability precludes an employee from performing one or more essential job functions, the Department and employee, in consultation with Vocational Rehabilitation, Employee Relations, and other offices as necessary, should begin the Interactive Process. 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. That the supervisor didn't ask anything medical. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation.