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. endobj Please log in as a SHRM member before saving bookmarks. | 1 p.m. Never assume an employee is disabled. 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. 1. 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. According to the EEOC, the interactive process is not always required under the ADA. endobj 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. Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. A Deconstructive Series for ADA Terminology, What to Include in Your ADA/Accommodation Toolkit, California Reasonable Accommodation Package, EEOC's Reasonable Accommodation, Establishing Procedures to Facilitate the Provision of, JAN Just-in-Time Module: Interactive Process, U.S. Your Employee & Labor Relations team now supports both represented and non-represented employees. An important step in the performance review process is choosing the standard for the evaluation. To cope with a paradoxical labor market, HR pros still squarely focused on recruiting may need to re-evaluate role requirements, inclusion initiatives and more. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. 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. If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. Members can get help with HR questions via phone, chat or email. endobj %PDF-1.5 % This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. "), That the supervisor said, "How can I help you? After complaining to her supervisor, the supervisor talked with HR. Another EEOC recommendation is to consider the employees preference. %PDF-1.5 In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. ADA regulations provide that in order to determine an appropriate reasonable accommodation, it may be necessary for the employer to initiate an informal, interactive process with the individual with a disability in need of the accommodation. 29 C.F.R. This documentation may also include the medical practitioners suggestions about potential accommodations. The company did not receive information in response to this request. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. the employees disability and need for accommodation are obvious. Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. 222 0 obj <>stream There should be no ambiguity in the explanation of the change. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. 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. ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. However, they may be a useful tool for both employers and employees. 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. % The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for 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. 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The employee who requested the accommodation is often the best source of information about the disability and possible accommodations. that employee's ability to perform the duties of his or her position, of the various options available to the employee, and to invite the employee to engage in an interactive process to develop an appropriate plan to resolve the employee's work-related medical issues. But the supervisor should have enough training to know when its time to go to HR. A Department should consider the factors listed in Section III. {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w vs_V\FG:FsZv7B,?/ iZ. 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. Remember to only ask for the necessary medical information. The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. However, the company offered her the option of leaving work at 4 p.m. 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." Other resources, such as the Job Accommodations Network (JAN), or your employee's medical provider, can give suggestions. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. Navigating the New EU Unitary Patent, EEOC targeting discriminatory use of artificial intelligence, Court upholds firing of marijuana cardholders discharged after positive weed test, Deadline nears for complying with PUMP Acts expanded protections for nursing mothers in the workplace. 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 . The law has helped hundreds of millions of workers in its relatively short history. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. When expanded it provides a list of search options that will switch the search inputs to match the current selection. 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. 4 Make use of words in such a way that . ", "Has that triggered the need for an interactive process? This includes with or without reasonable accommodation. This step is very important to the success of an accommodation. > g  f bjbj 4 X " An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. A human resources assistant was working with an electrician who needed accommodations related to seizures. "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. "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. Additionally, don't use negative words as they have a bad impact. The following list provides some guidelines. If assistance is desired, please call the ACCES Consultant at (858) 888-8888. Circumstances or the effectiveness of accommodations can change over time. Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. 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. hn CJ ) $ % A B c ) * 6 gd] F^F 8&#$$d &d N P )#P &#$$d &d N P a&#$-D(M DOCUMENTING CURRENT ACCOMMODATIONS The checklist and any notes should be maintained in a separate confidential medical file for that employee. Using the Interactive Process to Reach a Reasonable Accommodation. 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! It's not a terribly complicated idea, but many employers fall short in the execution. stream Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. The Interactive Process can begin in a number of ways. process will be maintained in your medical file, which is separate from your personnel file. Members may download one copy of our sample forms and templates for your personal use within your organization. ("I need an anti-glare screen."). Asking for all medical records will rarely, if ever, meet this test. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. Topics covered: National employment laws, harassment, accommodations, training, and more. ", In concluding that the plaintiff's ADA failure-to-accommodate claim also could not proceed, the court pointed to her failure to engage in the interactive process required by the ADA, including her refusal to try leaving the office at 4 p.m., as proposed by the company, or explore public transportation options to address her traffic-related anxiety. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to persons with disabilities unless doing so would impose an undue hardship or pose a direct threat to the safety of the employee or others. Reviewing current vacancies within the department. 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. For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. This includes information on the essential job functions your employee can and cant do. Please read our Cookie Notice. By using this site, you accept and agree to be bound by these terms. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. 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. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. 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', That way, no one is surprised when the accommodation is revisited down the road. Our focus on the People & Organization Development Team is to ensure that we are giving you the growth and development opportunities at the #1 public university in the world. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? The Americans with Disabilities Act (ADA) not only prohibits discrimination based on disability, but it also requires that employers provide workers with disabilities reasonable accommodations. var currentUrl = window.location.href.toLowerCase(); 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. The request can also come from someone other than the employee. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. The ability of employers and their managerial staff to recognize requests is important. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. A Transfer Search, if appropriate, is a continuation of the Interactive Process. | 2 p.m. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); Keep up with the story. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. It was created to assist you while you are recovering. Also, include a closing and a polite signature. Use JAN as needed we are free, and an outside resource. 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 following persons will be present at this meeting: [names of meeting participants]. "Often the request doesn't come until, for example, theres a performance management action thats going on." 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. $("span.current-site").html("SHRM MENA "); 18-50053 (Dec. 12, 2018). 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. 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). No Remote Monthly Series Training for Interactive Process. This is a request for reasonable accommodation. Virtual & Washington, DC | February 26-28, 2023. The employee does not have to formally notify the supervisor or department in writing. 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. hn U ji.3 The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. Should an Accommodation Request Automatically Trigger FMLA? 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. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. 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 Employees can start the interactive process using any form, including verbal communication. |^| else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. 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. 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. This is the time to brainstorm and consider what might work. <> This process is initiated either by: The employee's written or verbal request for assistance, or. Together you can discuss the potential impact of the accommodations. The interactive process will look different for everyone. In other cases, they may not be able to suggest ideas, but may be able to say whether ideas under consideration will help overcome the employees limitations. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. ' Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { 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. The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. Once youve identified an accommodation request, its best to take action immediately. For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space not why. Please note that all such forms and policies should be reviewed by your legal . So when, exactly, does an employer have adequate or sufficient notice to initiate the interactive discussion without receiving a request for accommodation from the employee? A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. After an employee requests accommodations, the employer must take the appropriate steps. Second, the employer must also have notice of the employees desire to obtain some type of accommodation. All rights reserved. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. Communication is especially important if youve provided any assistive technology or equipment. +R^_C%342hE0qmQSK[ x 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. This is not the case employers are free to try accommodations and stop them if they do not work. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> A federal agency recently updated its accommodation policy. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. Copyright Unnecessary delays are a violation of the ADA. The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. Think of theinteractive processas collaborating with your employees to develop accommodations. This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. The interactive process can begin when the employee makes the request. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. Then select the most appropriate accommodation for you and your employee. So its important to note that your employees request doesnt have to be in writing. If a Department Decides that the Proposed Accommodation(s) is Unreasonable. 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. ", "Document the whole thing from start to finish either you did the process or you didnt,"he said. Whether sending an email or letter, add a professional greeting that includes the person's name. Other options, such as a leave of absence or reduced schedule, exist and should be evaluated in light of what is permitted under policy and contract.