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. The following list provides some guidelines. The interactive process often begins when the employee makes an accommodation request. No Remote Monthly Series Training for Interactive Process. > g f bjbj 4 X " This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation. So its important to note that your employees request doesnt have to be in writing. 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. The Interactive Process can begin in a number of ways. 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. 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. This is a request for a reasonable accommodation. The accommodation [will begin or began] on [date] and end based upon future doctor visits. Determine if any repair, maintenance, or replacement is necessary to any equipment. Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? However, unless the disability or the need for accommodation is obvious, it is the responsibility of the employee to inform the supervisor that an accommodation is needed in order to perform the essential job functions, or to receive equal benefits and privileges of employment. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. So it's important to note that your employee's request doesn't have to be in writing. A federal agency recently updated its accommodation policy. endobj accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. ", Additionally, employers sometimes request or gather too much medical information, Loy said. 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 Court decisions interpreting the ADA provide some general principles. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. DOCUMENTING CURRENT ACCOMMODATIONS When expanded it provides a list of search options that will switch the search inputs to match the current selection. Use JAN as needed we are free, and an outside resource. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. The Interactive Process can begin in a number of ways. Keep your message as short as possible. ("I need an anti-glare screen."). 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. %PDF-1.5 <> h\ CJ The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. 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. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. There areperksto creating a company culture that welcomes employees with disabilities. As stated by the Third Circuit Court of Appeals in Taylor v. The most important way to monitor accommodations is to encourage ongoing communication. | 1 p.m. At this step, employers should be open to new ideas and new ways of doing things. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. 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. Knowing When to Request Medical Information, What does "Undue Hardship" mean? 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. 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. %PDF-1.5 2 0 obj 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. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. "You rarely see an employee who knows about the ADA and asks for a reasonable accommodation," he told HR Dive;"You need to start the process even if they havent used any magic words. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. This step is very important to the success of an accommodation. Asking for all medical records will rarely, if ever, meet this test. If an accommodation is not considered reasonable, refer to Sections IV and V below. That the employer has provided what was requested. 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 " Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. If there is more than one option, the employer should consider the preference of the employee. Please read our Cookie Notice. 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. "Focus on disclosing only information that is need-to-know. In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. This button displays the currently selected search type. ", 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. 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;}'; The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. "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. 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. 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 <> However, they may be a useful tool for both employers and employees. Once accommodation options have been explored, the employer must choose what accommodation to implement. According to the EEOC, the interactive process is not always required under the ADA. One good approach is to withhold the employees name and identifying information from outside resources. Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." ", The employees request. This agreement should be documented. Please enable scripts and reload this page. Make a request for an accommodation verbally, in writing, and/or using one of the above methods, to the RARC, the agency Workplace Equality Compliance Officer (WECO), a Deciding Official (typically the first line supervisor/manager), the servicing human resources office, or any agency employee connected with the job application process, as And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. They are excellent. Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { %%EOF &. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? Step 3: Get Job Descriptions in Order ' else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { There may be times when the appropriate accommodation is obvious. If you know an employee with a disability has a need, you can begin the interactive process in good faith. Let's say you have an employee that uses a wheelchair. ", 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.". 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: Culture, executive buy-in, discrimination, training, equal pay, and more. 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. 184 0 obj <> endobj However, the company offered her the option of leaving work at 4 p.m. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. endobj 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. Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. The following persons will be present at this meeting: [names of meeting participants]. After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. Take the employee's expressed preferences into consideration. The following situations and solutions are real-life examples of accommodations that were made by JAN customers. 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. Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. Your Employee & Labor Relations team now supports both represented and non-represented employees. 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. % That there was followup, but that it stayed away from medical details. A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. Dont assume that thecosts of providing the accommodationwill be too expensive. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. The original accommodation was a "transitional accommodation," that is it was intended for a specifically defined purpose and time period has elapsed; The employee indicates that a new accommodation may be necessary; or. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. Together you can discuss the potential impact of the accommodations. 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). <> var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); The company was able to edit these forms to fit its needs. 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. %PDF-1.5 % Need help with a specific HR issue like coronavirus or FLSA? The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. 4 0 obj This is particularly true if the employer has no indication the disability is impacting the employees ability to perform his or her essential job functions. The person writing the email should make sure that the change in process is communicated clearly. What does antisemitic discrimination look like at work? One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. Your Accommodation Request Was Denied. Finally, the employee says, "I'm really having trouble getting out of bed in the morning. $("span.current-site").html("SHRM China "); Your session has expired. ", 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 checklist and any notes should be maintained in a separate confidential medical file for that employee. Reviewing current vacancies within the department. JANis a free national resource for employers looking for help with accommodations. These forms included medical inquiry, onboarding, trial, and other process forms. You dont want the front-line supervisor feeling like he needs to answer this question,"Schwarz said, and "it's not realistic that every manager/supervisor will become an expert in the interactive process. 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. Under the ADA, when an employee requests an accommodation and the disability and need for accommodation are not obvious, then the employer can request medical documentation to help determine whether the employee has a disability and needs the requested accommodation and information to help process the accommodation request. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. 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. Necessary information may include documentation of the disability and need for accommodation. Members can get help with HR questions via phone, chat or email. {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. Employees can start the interactive process using any form, including verbal communication. 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 request can also come from someone other than the employee. Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. Second, the employer must also have notice of the employees desire to obtain some type of accommodation. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. III. var temp_style = document.createElement('style'); But this all counts as the interactive process. Dont prematurely end the process,"Schwarz said. 1. ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. Consistent with departmental and campus practices, the supervisor may agree to an accommodation for essential functions, and to accommodation for, or elimination of, non-essential functions. 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. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. 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. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. II. This process is initiated either by: The employee's written or verbal request for assistance, or. 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. If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. 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. ", "Has that triggered the need for an interactive process? In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. endstream endobj 188 0 obj <>stream Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. Learn more in our Cookie Policy. the employees disability and need for accommodation are obvious. <> The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u 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. Keep it brief. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. 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. Should an Accommodation Request Automatically Trigger FMLA? Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. 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. Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. o @ Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. (Marginal functionsare responsibilities that, once altered or removed, dont change the primary purpose of the job.) He does not link his need for the new chair with a medical condition. 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 An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? Once youve identified an accommodation request, its best to take action immediately. A large company wanted to standardize all of the accommodation requests it receives. 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. A Transfer Search, if appropriate, is a continuation of the Interactive Process. Make use of positive language and try to remain positive throughout the email. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. 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." Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. "If there is one, go ahead and just do it." 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. 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. Never assume an employee is disabled. The employee does not have to formally notify the supervisor or department in writing. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. Essential functionsare the basic job duties that an employee must be able to perform. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. l&#$/ h o u x 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." First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. If assistance is desired, please call the ACCES Consultant at (858) 888-8888. SHRM Employment Law & Compliance Conference, ADAs Interactive Process Is a Two-Way Street, New OSHA Guidance Clarifies Return-to-Work Expectations, Trump Suspends New H-1B Visas Through 2020, Faking COVID-19 Illness Can Have Serious Consequences, White House Takes Action Against Migrant Child Labor, EEOC Lawsuit Highlights Cancer Discrimination in the Workplace. 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.