This is considered an accommodation request. 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." The EEOC recommends that you analyze the job, its purpose, and its essential functions. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. They are excellent. $(document).ready(function () { Court decisions interpreting the ADA provide some general principles. ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. DOCUMENTING CURRENT ACCOMMODATIONS 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 request had been sitting on one of the desks in the purchasing department. Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. Members can get help with HR questions via phone, chat or email. In December 2014, the plaintiff's new supervisor made it clear that in the absence of an approved accommodation under the ADA, she was expected to be in the office beginning in the new year. 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. 4 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. 1630.2(o)(3). After Completing FMLA, The Employer Uses The Interactive Process And Lawfully Terminated Its Employee The crossroad between the protections of the FMLA and the ADA is somewhat difficult to navigate. endobj Make use of words in such a way that . $("span.current-site").html("SHRM MENA "); If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. % 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. 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. ` Dont prematurely end the process,"Schwarz said. It may also come as a result of administering FMLA leave or a workers compensation claim. 3 0 obj This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). But this all counts as the interactive process. 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 process requires an individualized assessment of both the job and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. $("span.current-site").html("SHRM China "); %%EOF 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. $('.container-footer').first().hide(); When the need isn't obvious, more information will be helpful when discussing accommodations. The purpose of an accommodation is to enable the employee to perform the essential functions of the job. 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. Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. 1 0 obj Find the latest news and members-only resources that can help employers navigate in an uncertain economy. % 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', This includes information on the essential job functions your employee can and cant do. All rights reserved. Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. 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 interactive process can begin when the employee makes the request. As stated by the Third Circuit Court of Appeals in Taylor v. process will be maintained in your medical file, which is separate from your personnel file. c'`WpPs%<8 I\`aC~",&,b)qo)&ZG*#TFL*#QTy`^`t"d+p[|:n.Hmb]7Dx=>J ?|wadG 1fO7,m/I?viwMkO % Also, include a closing and a polite signature. 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. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. Keep it brief. When expanded it provides a list of search options that will switch the search inputs to match the current selection. "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.". x[OF0Ic{|Y"vB!8$m38t =saOE9/t4d/_u0[,_K1KY3u\p,Q";[N>p '$tB/`;I=`O@b6` {vxsA *;AXN0(/:!Npt"qD?6:u>O3G?Fu0nI hDD1qpa o=^,LT7&Q8`[email protected]"ACP9gC0+y=8A+uvoE %}IZ"EwV@_[PZmm[8>^||'=biB@^ru.@{&a[J{h%dyplpy5g}c!@75e! ", "Has that triggered the need for an interactive process? ", 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. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. 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. 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. Communication is especially important if youve provided any assistive technology or equipment. 1 0 obj 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. 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. "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. 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. If a Department Decides that the Proposed Accommodation(s) is Unreasonable. 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. Decision-making authority: Department head or designee. 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 The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. "The 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. 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. The Americans with Disabilities Act (ADA) not only prohibits discrimination based on disability, but it also requires that employers provide workers with disabilities reasonable accommodations. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. Understand how these limitations impact their essential job functions. Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. ", "Clarity is important," he said, "and getting things in writing adds to clarity. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. 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. 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. Evaluate whether the employee can perform the job safely. "If it wont work, you can show you did all you could have done. If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> Unnecessary delays are a violation of the ADA. 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. ' ( 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 hn U ji.3 3 0 obj Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? 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." The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. After six months, she hadnt heard anything. endobj If you are claiming undue hardship, you need to be able to articulate why youve met that standard. However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk. No Remote Monthly Series Training for Interactive Process. Following . You have successfully saved this page as a bookmark. the employees disability and need for accommodation are obvious. Here at UC Berkeley, we value your growth and development throughout your career journey. 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. But the supervisor should have enough training to know when its time to go to HR. Jonathan E. O'Connell, SHRM-SCP, is a labor and employment attorney practicing with the federal government in Washington, D.C. [Visit SHRM's resource page on theAmericans with Disabilities Act.]. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. But failure to engage in the interactive process may prevent an employee from receiving a reasonable accommodation, and may therefore result in liability under the ADA. Trello. ET, Webinar Equal Employment Opportunity Commission, For more training and information on the interactive process, see JAN's Just-In-Time Training Module ", For information on the interactive process in relation to service providers, see, No Blog Posts available for Interactive Process. 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. 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. 222 0 obj <>stream Then select the most appropriate accommodation for you and your employee. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? Work with your employee to understand their specific challenges or limitations. Accommodation options that can be explored, include, but are not limited to: Making existing facilities used by employees readily accessible to and usable by the disabled employee; Acquiring or modifying equipment or devices; Providing qualified readers or interpreters; and. +R^_C%342hE0qmQSK[ x Whether sending an email or letter, add a professional greeting that includes the person's name. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. There may be times when the appropriate accommodation is obvious. If you know an employee with a disability has a need, you can begin the interactive process in good faith. Let's say you have an employee that uses a wheelchair. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. 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(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. }); if($('.container-footer').length > 1){ II. 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. Using the Interactive Process to Reach a Reasonable Accommodation. 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. 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. Members may download one copy of our sample forms and templates for your personal use within your organization. Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. 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 An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. <> As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. 4 0 obj Reasonable Accommodation - National Association of Letter Carriers AFL-CIO You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. The ability of employers and their managerial staff to recognize requests is important. Need help with a specific HR issue like coronavirus or FLSA? 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. The checklist and any notes should be maintained in a separate confidential medical file for that employee. 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. } Finally, the employee says, "I'm really having trouble getting out of bed in the morning. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. Please log in as a SHRM member before saving bookmarks. Before meeting with the employee, review the employee's current job description and any available A federal agency recently updated its accommodation policy. The request can also come from someone other than the employee. Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. Please read our Privacy Notice, Terms of Use, Cookie Notice, CCPA Notice, and Website Accessibility Policy. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. 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. endstream endobj 189 0 obj <>stream Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. When in doubt, ask for clarification on the request and why. Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. Employees last name], We have received your medical release from your doctor, [name] dated [date]. } If assistance is desired, please call the ACCES Consultant at (858) 888-8888. 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.". The sample Options Letter may be modified by an appointing power The company did not receive information in response to this request. 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. {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. If there is no solution, the best thing is your documentation showing that you did explore accommodation options. ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. 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. 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. ", Additionally, employers sometimes request or gather too much medical information, Loy said. Thats because their request for a new chair isnt related to a medical condition. Employers must also act promptly to initiate this discussion. 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. (For example, "I'm getting headaches from the glare from my computer screen. The following is a brief summary of the Interactive Process: Step 1 Invite the employee to participate in assessing return-to-work options and alternatives The CA Dept. "You rarely see an . Step 1 - Create a policy. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. h\ CJ %PDF-1.5 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. This is not the case employers are free to try accommodations and stop them if they do not work. 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 ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. " o @ ", 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. Essential functionsare the basic job duties that an employee must be able to perform. {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w vs_V\FG:FsZv7B,?/ iZ. The Interactive Process can begin in a number of ways. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. The person writing the email should make sure that the change in process is communicated clearly. "), That the supervisor said, "How can I help you?