", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. 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. "Focus on disclosing only information that is need-to-know. It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. <> ' ( 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 The interactive process can begin when the employee makes the request. 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. 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 law requires that employees and employers engage in the Interactive Process. 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. 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. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. III. 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. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. 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." ", 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. It may also come as a result of administering FMLA leave or a workers compensation claim. 2023 else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { You can even have a trial period whenever theres doubt that an accommodation will be a good fit. The law does not require the use of these or any other forms to make a request for a reasonable accommodation or to engage in an effective, good faith interactive process. PDF Reasonable Accommodation - National Association of Letter Carriers AFL-CIO 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. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. 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. Reasonable Accommodation | CRD - California Dont prematurely end the process,"Schwarz said. They are excellent. 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. c'`WpPs%<8 I\`aC~",&,b)qo)&ZG*#TFL*#QTy`^`t"d+p[|:n.Hmb]7Dx=>J ?|wadG 1fO7,m/I?viwMkO % There should be no ambiguity in the explanation of the change. 1 0 obj 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. An important step in the performance review process is choosing the standard for the evaluation. 0 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. 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. This area cover the performance management review program 'Achieve Together' and the Foundational Skills program. If assistance is desired, please call the ACCES Consultant at (858) 888-8888. Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. |^| n\3C[% Employers must also act promptly to initiate this discussion. DOC Reasonable Accommodation Agreement - sample letter Federal Appeals Court Emphasizes Importance of Interactive Process in Make use of words in such a way that . Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. 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 Make use of positive language and try to remain positive throughout the email. Keep your message as short as possible. 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. 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', %%EOF This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. Keep it brief. 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. 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 includes with or without reasonable accommodation. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Circuit Court of Appeals decision shows. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. PDF The FEHA/ADA Interactive Process - Freeman Rehabilitation Services 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. How to Create a Robust Reasonable Accommodation Process - SHRM 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. {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. Its a good idea to touch base with your employee on how things are going. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. Pay careful attention to medical-related issues employees bring to your attention. These forms included medical inquiry, onboarding, trial, and other process forms. ", "Clarity is important," he said, "and getting things in writing adds to clarity. 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.". Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." 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 Understanding The ADA's Interactive Process - Insperity So it's important to note that your employee's request doesn't have to be in writing. stream To request permission for specific items, click on the reuse permissions button on the page where you find the item. Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. This is considered an accommodation request. There areperksto creating a company culture that welcomes employees with disabilities. 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. PDF Sample Options Letter for Resolving Medical/Employment Issues - California When expanded it provides a list of search options that will switch the search inputs to match the current selection. That there was followup, but that it stayed away from medical details. Asking for all medical records will rarely, if ever, meet this test. Whenever a supervisor decides not to grant an employee's request for assistance (even when the assistance has not been identified as a request for accommodation of a disability), the best practice is to provide the employee with the campus policies/procedures pertinent to accommodation of employees with disabilities. 3 0 obj ", "Has that triggered the need for an interactive process? ADA Reasonable Accommodation Interactive Process Letter An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. These accommodations are specific to each individuals needs. Employees can start the interactive process using any form, including verbal communication. Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. Second, the employer must also have notice of the employees desire to obtain some type of accommodation. The company did not receive information in response to this request. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? He does not link his need for the new chair with a medical condition. Be open to doing things a different way. If an accommodation is not considered reasonable, refer to Sections IV and V below. Evaluate whether the employee can perform the job safely. Members may download one copy of our sample forms and templates for your personal use within your organization. 1630.2(o)(3). The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. The employee does not have to formally notify the supervisor or department in writing. "I advise employers to bend over backwards to help somebody who is saying, 'I need some help'for something that might possibly be a disability, whether or not you like the person,"Fram said. Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. Employees Responsibilities: Work within the written medical limitations Provide medical updates of functional limitations If taken off work by your doctor, notify supervisor and [name], ACCES Specialist. Members can get help with HR questions via phone, chat or email. Sample Forms - AskJAN.org "If it wont work, you can show you did all you could have done. 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. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { Step 1 - Create a policy. The following persons will be present at this meeting: [names of meeting participants]. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 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 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. 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. Read more Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. A Department should consider the factors listed in Section III. 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. 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.. } Use JAN as needed we are free, and an outside resource. V. If an Employee Declines an Offer of Accommodation, Procedure 36: Classification of Positions, Procedure 60: Layoff and Reduction in Time from Professional and Support Staff Career Positions, Procedure 84: Accommodations for Nursing Mothers, Reasonable Accommodation and the Interactive Process, Family and Medical Leaves of Absence (FMLA/CFRA/PDL), Berkeley Campus Policy/Procedure for Medical Separation, Procedure 84: Accommodations for Nursing Mothers. The Equal Employment Opportunity Commission (EEOC) enforces the protections provided to employees with disabilities under the Americans with Disabilities Act (ADA). Company Email Notifying of a Process Change | Edit & Forward Select Accept to consent or Reject to decline non-essential cookies for this use. Members may download one copy of our sample forms and templates for your personal use within your organization. Once an accommodation has been chosen, it is time to implement the accommodation. The law requires that employees and employers engage in the Interactive Process. Keep up with the story. Your Employee & Labor Relations team now supports both represented and non-represented employees. The California Fair Employment and Housing Act requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship. 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. If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. ADA Best Practices For Employers Engaging in an Interactive Process 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. However, the company offered her the option of leaving work at 4 p.m. endstream endobj startxref Decision-making authority: Department head or designee. var temp_style = document.createElement('style'); Subscribe to the HR Dive free daily newsletter, Subscribe to HR Dive for top news, trends & analysis, The free newsletter covering the top industry headlines, Tango Introduces New Batch Blur Functionality, SocialTalent Launches The SocialTalent Academy: A Professional Certification Program for Recru, Talkspace Launches First-of-its-Kind Portal Dedicated to Employee Mental Health Resources, Talent Attraction and Retention for 2023: Finance and HR leaders should look to on-demand pay,, By signing up to receive our newsletter, you agree to our, Webinar One good approach is to withhold the employees name and identifying information from outside resources. ' HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." Shortly thereafter, the company terminated the plaintiff's employment after she failed to report to work due to child care issues. When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. EEOC Informal Discussion Letter HSmk0nv^- IA}(uNf:$+ifaGM0b_C 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. If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. When in doubt, ask for clarification on the request and why. You have successfully saved this page as a bookmark. Learn more in our Cookie Policy. process will be maintained in your medical file, which is separate from your personnel file. Topics covered: National employment laws, harassment, accommodations, training, and more. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . That the employer has provided what was requested. "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. DOCUMENTING CURRENT ACCOMMODATIONS The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. 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? var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); Reviewing current vacancies within the department. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. 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. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. 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. "The interactive process is such an important step for employers," he told HR Dive, and "its totally in the employers control to get right or mess up. Here are seven common mistakes. It is understood that these are temporary arrangements designed to allow UCSD employees to work while recovering from illness or injury, and do not represent a permanent change of duties or responsibilities. Work with your employee to understand their specific challenges or limitations. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. Please enable scripts and reload this page. 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