Please log in as a SHRM member before saving bookmarks. Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". 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. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. 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. Whether sending an email or letter, add a professional greeting that includes the person's name. 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 a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. 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. %PDF-1.5 After six months, she hadnt heard anything. A human resources assistant was working with an electrician who needed accommodations related to seizures. That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." Please enable scripts and reload this page. It may also come as a result of administering FMLA leave or a workers compensation claim. 3 0 obj Employers must also act promptly to initiate this discussion. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. 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. 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 a disability alone is not enough to trigger the obligation to initiate the interactive process. The EEOCs guidance provides that an employer should initiate the reasonable accommodation interactive process without being asked if the employer (1) knows that he employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. In other words, employers must recognize the need for accommodation even in the absence of an employee request. ET, Webinar xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. Remember to only ask for the necessary medical information. That the supervisor didn't ask anything medical. ; Dont assume that thecosts of providing the accommodationwill be too expensive. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { Lawsuits allege Kroger payroll transition glitch led to missed, incorrect paychecks, Quiet Black History Month a warning sign, DEI pros say, Starbucks faces corporate employee revolt, Everything employers must know on employee development, Boost Employee Engagement with Small Moments of Joy at Work, Winning the War for Talent: Why On-Demand Pay Is Becoming the Must-Have Benefit to Get and Keep the Best Employees, QVC, HSN parent lays off 12% of its workforce, How layoffs can have negative long-term consequences for companies, How to address the lack of hybrid work guidelines, Top 10 Workplace Trends for Thriving Work Environments, Caregiving Support: A Smart Investment for Employers in an Uncertain Economy, 5 Workplace Gaps Employers Cant Afford to Ignore, Top Compensation Sins HR Execs Must Avoid, Rethinking Population Health and the Intersection of the Primary Care Experience, NLRB judge: Starbucks committed egregious misconduct during Buffalo-area union drive, Manufacturer settles for $460K over CEOs alleged discriminatory age-based comments, What the person said when he or she came to the supervisor. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. The interactive process can begin when the employee makes the request. 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. 4 0 obj This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation. n\3C[% An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. No Past In-Person Trainings for Interactive Process. Don't hide your interactive process requirement, rather publicize it. Your Employee & Labor Relations team now supports both represented and non-represented employees. 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. A Transfer Search may be another option. If it is an email, include an email signature with your contact information. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. <>>> 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. %PDF-1.5 % Circuit Court of Appeals decision shows. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. 2 0 obj Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." ", 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 employees disability and need for accommodation are obvious. He does not link his need for the new chair with a medical condition. 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. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. This process is initiated either by: The employee's written or verbal request for assistance, or. 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. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w vs_V\FG:FsZv7B,?/ iZ. It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. III. The employer can switch the marginal functions performed by these two employees. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. 0 h* e N N N h* e e }* N e e f* N f* r ) T * y d b) R* * 0 * p) 0 v p 0 * 0 e * D 8 t h* h* * N N N N 0 " % Ask your employees if they have any thoughts on what might help. stream A request for assistance or indication by the employee that some corrective measure may need to be taken can be made verbally and casually, as well as formally. Court decisions interpreting the ADA provide some general principles. {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. "If an employee mentions some type of limitation or problem, the supervisor should err on the side of caution and move to talk to the employee.". Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. 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. Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. endobj This is considered an accommodation request. endobj Dont prematurely end the process,"Schwarz said. ' ( 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 Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. 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. 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 . Please purchase a SHRM membership before saving bookmarks. Together you can discuss the potential impact of the accommodations. "You rarely see an . Its a good idea to touch base with your employee on how things are going. If the employee cannot provide the necessary information, then medical documentation can be useful. 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. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. 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. 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. } Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. o @ The interactive process will look different for everyone. Please read our Cookie Notice. Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. 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. ", "When implementing an accommodation, supervisors sometimes disclose medical information,"Loy said. 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. Before meeting with the employee, review the employee's current job description and any available No Upcoming Events for Interactive Process. 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 Please confirm that you want to proceed with deleting bookmark. The most important way to monitor accommodations is to encourage ongoing communication. <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> 1998) (when the employee "fail[s] to hold up her end of the interactive process by clarifying the extent of her medical restrictions, [the employer] cannot be held liable for failing to provide reasonable accommodations"); 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. h\ CJ There should be no ambiguity in the explanation of the change. Here at UC Berkeley, we value your growth and development throughout your career journey. They are excellent. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); These forms included medical inquiry, onboarding, trial, and other process forms. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. ("I need an anti-glare screen."). 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 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. } If an accommodation is not considered reasonable, refer to Sections IV and V below. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. This notice does not need to disclose the employees specific condition. The following list provides some guidelines. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { "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. Communication is especially important if youve provided any assistive technology or equipment. 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. In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. This is the time to brainstorm and consider what might work. One thing employers might want to do when testing accommodations is to make a written agreement with the employee that the accommodation is being tested, how long the test will be, and what will happen if the accommodation does not work. Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. stream 1 0 obj The person writing the email should make sure that the change in process is communicated clearly. So it's important to note that your employee's request doesn't have to be in writing. $(document).ready(function () { Reviewing current vacancies within the department. Knowing When to Request Medical Information, What does "Undue Hardship" mean? Accommodations Beyond Job Performance = Compliance and Inclusion, Changing a Supervisor as an Accommodation under the ADA, Cognitive Impairment and the Interactive Process, Good Deeds Not Punished: Dispelling the Idea of Precedent Setting and the ADA, Out with the Old, In with the NewSupervisor, Providing Temporary Accommodation Solutions, Recognizing an Accommodation Request Under the ADA. Once accommodation options have been explored, the employer must choose what accommodation to implement. The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. 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. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. |^| 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. hn CJ ji.3 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. At this step, employers should be open to new ideas and new ways of doing things. 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. The Interactive Process can begin in a number of ways. 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." 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. In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. 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. Never assume an employee is disabled. Another EEOC recommendation is to consider the employees preference. Following . 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. var currentUrl = window.location.href.toLowerCase(); In order for the practitioner to provide a knowledgeable recommendation, the job description with the essential assigned duties annotated and a PEM form for the job should be provided to the employee to give to her/his practitioner. Employees can start the. Select Accept to consent or Reject to decline non-essential cookies for this use. 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. 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? The Equal Employment Opportunity Commission (EEOC) enforces the protections provided to employees with disabilities under the Americans with Disabilities Act (ADA). It was created to assist you while you are recovering. 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 example, if an employee has a couple of doctors appointments during the next few weeks and needs to come in a little late, let the person do it. Employees can start the interactive process using any form, including verbal communication. 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 session has expired. 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 equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. 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. ", 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.". This is a request for reasonable accommodation. 222 0 obj <>stream Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. 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. As stated by the Third Circuit Court of Appeals in Taylor v. Uncertainty from the start. <> " 3 0 obj 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. Step 3: Get Job Descriptions in Order That there was followup, but that it stayed away from medical details. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. Never assume an employee is disabled. Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. McAfee & Taft A Professional Corporation. The EEOCs recommended starting point is to use an interactive process once a request has been made. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. 2023 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. 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." This is a request for a reasonable accommodation. 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. Keep your message as short as possible. (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. The interactive design is user-friendly and highly engaging. Essential functionsare the basic job duties that an employee must be able to perform. 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. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. <> 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. Use JAN as needed we are free, and an outside resource. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. <> 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. 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. 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.