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. 1630.2(o)(3). A human resources assistant was working with an electrician who needed accommodations related to seizures. The sample policy, written by a law firm, notes that it is intended to aid employers in meeting their obligations under the Americans with Disabilities Act (ADA), as amended, and states that the accompanying sample forms are for "informational, educational, and/or training purposes only." Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. ", The employees request. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. &. Finally, the employee says, "I'm really having trouble getting out of bed in the morning. Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. ' ( 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 One way an employer can ensure effective communication with an employee who has requested an accommodation is to promptly schedule a meeting to discuss the employee's 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. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. A Department should consider the factors listed in Section III. 4 0 obj NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. Never assume an employee is disabled. 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. 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. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { 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. The employee who requested the accommodation is often the best source of information about the disability and possible accommodations. 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. %PDF-1.5 In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. 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. Another EEOC recommendation is to consider the employees preference. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. 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. To request permission for specific items, click on the reuse permissions button on the page where you find the item. Other resources, such as the Job Accommodations Network (JAN), or your employee's medical provider, can give suggestions. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. 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. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. The interactive process can begin when the employee makes the request. This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". 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. The purpose of an accommodation is to enable the employee to perform the essential functions of the job. hn CJ ) $ % A B c ) * 6 gd] F^F 8&#$$d &d N P )#P &#$$d &d N P a&#$-D(M Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . Additionally, don't use negative words as they have a bad impact. %PDF-1.5 % 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. 3 0 obj If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. ", 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. The interactive process will look different for everyone. Welcome to the newest section of our site - Talent Acquisition! Adobe PDF viewer is required for some of these documents. 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. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. The Interactive Process can begin in a number of ways. 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.". 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. } 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. After complaining to her supervisor, the supervisor talked with HR. (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. endstream endobj 188 0 obj <>stream The law requires that employees and employers engage in the Interactive Process. 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. 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;}'; (For example, "I'm getting headaches from the glare from my computer screen. The EEOCs recommended starting point is to use an interactive process once a request has been made. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. Employers must also act promptly to initiate this discussion. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. The Office of Diversity, Equity, Inclusion, and Belonging (DEIB) fosters community and engagement for staff, develops programs and experiences for employees to increase their racial literacy and cultural fluency, and is committed to creating a community where all employees can be their authentic selves at work everyday. An important step in the performance review process is choosing the standard for the evaluation. These accommodations are specific to each individuals needs. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is 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. 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. 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. 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. For example, if an employee with a non-visible disability indicates she is having trouble completing her work tasks because of her disability, the employer does not have enough information to provide effective accommodations. The human resources director informed him that the company policy is to only ask for what is absolutely necessary. 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. Employees last name], We have received your medical release from your doctor, [name] dated [date]. It is with the understanding that after each future doctor visits you will provide a medical update indicating either a release to perform the essential functions of your position or information describing updated functional limitations, so that a determination can be made regarding continuation of the temporary accommodation. This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. Employers must initiate an "interactive process" when an applicant or employee requests reasonable accommodations. ", Loy agreed that training for front-line supervisors is crucial: Not on the entire ADA," however:"focus on how to recognize when an employee is making an accommodation request.". Court decisions interpreting the ADA provide some general principles. However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. At this step, employers should be open to new ideas and new ways of doing things. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. The company was able to edit these forms to fit its needs. When in doubt, ask for clarification on the request and why. Ask your employees if they have any thoughts on what might help. the employees disability and need for accommodation are obvious. This notice does not need to disclose the employees specific condition. "), That the supervisor said, "How can I help you? % <> 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. All rights reserved. These forms included medical inquiry, onboarding, trial, and other process forms. " (Marginal functionsare responsibilities that, once altered or removed, dont change the primary purpose of the job.) That there was followup, but that it stayed away from medical details. 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. Fh^F`h 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. Please log in as a SHRM member. An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. 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 Knowing When to Request Medical Information, What does "Undue Hardship" mean? What was the motivation, and did the employer meet its duty?, "The interactive process should be ended only after people have taken a hard look and decided theres really nothing else to say about the matter. It was created to assist you while you are recovering. 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. According to the EEOC, the interactive process is not always required under the ADA. "You rarely see an . 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. 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. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. "If there is one, go ahead and just do it." If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. 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). Members may download one copy of our sample forms and templates for your personal use within your organization. Essential functionsare the basic job duties that an employee must be able to perform. If the employee cannot provide the necessary information, then medical documentation can be useful. Empower your employee to express concerns with their accommodations at any time. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. Think of theinteractive processas collaborating with your employees to develop accommodations. Reviewing current vacancies within the department. When the need isn't obvious, more information will be helpful when discussing accommodations. var temp_style = document.createElement('style'); 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! |^| if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { The supervisor may request that the employee provide written documentation from a licensed medical practitioner, specifying the employees functional limitations as they pertain to the job, without providing diagnostic information. A large company wanted to standardize all of the accommodation requests it receives. 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. The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. ' The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. ", "Document the whole thing from start to finish either you did the process or you didnt,"he said. Once the employer has notice of a disability and the need for an accommodation, the ADA requires (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employees request; and (3) offering an accommodation that is reasonable and effective.. % The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. 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. This documentation may also include the medical practitioners suggestions about potential accommodations. Necessary information may include documentation of the disability and need for accommodation. {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w vs_V\FG:FsZv7B,?/ iZ. If there is more than one option, the employer should consider the preference of the employee. 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. Zappos. If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. Learn more in our Cookie Policy. Employees can start the. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. No Past Exhibit Booths for Interactive Process. 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. hn UVmH nH u hn jD hn U The Equal Employment Opportunity Commission (EEOC) enforces the protections provided to employees with disabilities under the Americans with Disabilities Act (ADA). It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. Topics covered: National employment laws, harassment, accommodations, training, and more. 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 " There areperksto creating a company culture that welcomes employees with disabilities. n\3C[% One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. 0 You can even have a trial period whenever theres doubt that an accommodation will be a good fit. The sample Options Letter may be modified by an appointing power They are excellent. For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space not why. Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. 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. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. 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." hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? The request doesnt have to include any specific terminology. "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 youve identified an accommodation request, its best to take action immediately. 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? 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. 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. If it is an email, include an email signature with your contact information. So its important to note that your employees request doesnt have to be in writing. 1 0 obj Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. 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). Be open to doing things a different way. This step is very important to the success of an accommodation. 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. The following list provides some guidelines. 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. 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. Need help with a specific HR issue like coronavirus or FLSA? Assess the operational needs of the department, considering issues such as: The number of persons employed in the department; The number, type and locations of the units within the department; The type of operation, including the composition, structure, and functions of its workforce, its geographic separateness, and the administrative relationship of the department to the campus; The impact of the accommodation on the operation of the department, including the impact on the ability of other employees to perform their duties and the impact on the department's ability to conduct business; The overall financial resources of the UC system; The impact of the accommodation on campus operations. The most important way to monitor accommodations is to encourage ongoing communication. This is the time to brainstorm and consider what might work. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. | 2 p.m. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. Assess the effectiveness of the accommodation(s) in enabling the employee to perform the essential functions of the job. 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. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. 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. ` When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. Step 1 - Create a policy. Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. IV. 2023 When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. Then select the most appropriate accommodation for you and your employee. HSmk0nv^- IA}(uNf:$+ifaGM0b_C What Now? 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.