Keep your message as short as possible. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. Don't hide your interactive process requirement, rather publicize it. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. This documentation may also include the medical practitioners suggestions about potential accommodations. "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. These accommodations are specific to each individuals needs. The EEOCs recommended starting point is to use an interactive process once a request has been made. If it is a written letter, include a handwritten signature. When in doubt, ask for clarification on the request and why. Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. Your Employee & Labor Relations team now supports both represented and non-represented employees. The assistant wanted the employee to sign a blanket medical release. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. If it is an email, include an email signature with your contact information. Take the employee's expressed preferences into consideration. 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. Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." Essential functionsare the basic job duties that an employee must be able to perform. 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. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. The law requires that employees and employers engage in the Interactive Process. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. Your session has expired. This area cover the performance management review program 'Achieve Together' and the Foundational Skills program. % 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. 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. Keep it brief. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); No Remote Monthly Series Training for Interactive Process. The interactive process often begins when the employee makes an accommodation request. 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. "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. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. Here are some recommended steps to include in your checklist. This is a request for a reasonable accommodation. Empower your employee to express concerns with their accommodations at any time. What Now? Second, the employer must also have notice of the employees desire to obtain some type of accommodation. 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. Employees who are receiving accommodations need to understand that they should let their employers know if there are changes or problems with the accommodation and who specifically to contact. Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. | 2 p.m. <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> Also, include a closing and a polite signature. endobj | 1 p.m. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. Keep up with the story. The request can also come from someone other than the employee. For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. endstream endobj startxref There should be no ambiguity in the explanation of the change. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. 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"); Asking for all medical records will rarely, if ever, meet this test. Time Warner Cable Texas LLC hired the plaintiff in October 2012 as a workforce analyst. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. 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. endobj 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. The person writing the email should make sure that the change in process is communicated clearly. 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. The company did not receive information in response to this request. 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. 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. That the employer has provided what was requested. If there is no solution, the best thing is your documentation showing that you did explore accommodation options. If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. But the supervisor should have enough training to know when its time to go to HR. 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An employee submitted an accommodation request for an ergonomic chair due to a back injury. It's not a terribly complicated idea, but many employers fall short in the execution. Court decisions interpreting the ADA provide some general principles. ("I need an anti-glare screen."). When an employee becomes unable to perform the essential, assigned duties of the currently-held position as a result of a covered disability, the Berkeley campus is committed to providing services to assist the employee. Work with your employee to understand their specific challenges or limitations. (Supervisors should stay out of medical details as much as possible, Fram said.). Thats because their request for a new chair isnt related to a medical condition. 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. Whether sending an email or letter, add a professional greeting that includes the person's name. 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? To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. 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. ` Before meeting with the employee, review the employee's current job description and any available But this all counts as the interactive process. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. Here at UC Berkeley, we value your growth and development throughout your career journey. For example, it is sufficient if the employer receives notice of treatment needed by an employee. Make use of words in such a way that . (800) 526-7234 (Voice) | (877) 781-9403 (TTY) | Employer Live Chat, Home| About| For Employers| For Individuals| For Others| On Demand, Feedback| Accessibility| Copyright| Disclaimer| Privacy. var currentUrl = window.location.href.toLowerCase(); ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. Determine if any repair, maintenance, or replacement is necessary to any equipment. (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 employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. 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. Topics covered: National employment laws, harassment, accommodations, training, and more. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. 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. No Past Exhibit Booths for Interactive Process. Members may download one copy of our sample forms and templates for your personal use within your organization. "Interactive Process Checklist" any time they talk to the employee regarding these issues. h\ CJ 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. 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. Accommodation options will be considered in discussions with the employee. A human resources assistant was working with an electrician who needed accommodations related to seizures. Never assume an employee is disabled. A federal agency recently updated its accommodation policy. 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. hn UVmH nH u hn jD hn U No Past In-Person Trainings for Interactive Process. 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u 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. You can even have a trial period whenever theres doubt that an accommodation will be a good fit. A large company wanted to standardize all of the accommodation requests it receives. According to the EEOC, the interactive process is not always required under the ADA. @ A B U V n o z { In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. 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. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { This includes information on the essential job functions your employee can and cant do. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 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. 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.]. Circumstances or the effectiveness of accommodations can change over time. In June 2013, the plaintiff made an accommodation request under the ADA to lie down while at work due to dizzy spells related to her pregnancy. 18-50053 (Dec. 12, 2018). 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." $(document).ready(function () { The important thing for employers to remember is not to ask for too much information. In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. The most important way to monitor accommodations is to encourage ongoing communication. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). LinkedIn and 3rd parties use essential and non-essential cookies to provide, secure, analyze and improve our Services, and to show you relevant ads (including professional and job ads) on and off LinkedIn. A JAN consultant explained the interactive process, that the employee's disclosure is a request for accommodation, and shared JAN's Sample Reasonable Accommodation Request Form for Employers to provide to the employee, in order to clarify and document her accommodation needs. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to persons with disabilities unless doing so would impose an undue hardship or pose a direct threat to the safety of the employee or others. Once youve identified an accommodation request, its best to take action immediately. 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. Never assume an employee is disabled. The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. |^| 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. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. The human resources director informed him that the company policy is to only ask for what is absolutely necessary. A Department should consider the factors listed in Section III. 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. However, in other cases the individual may know that he/she is having difficulty, but may be uncertain about the exact cause or possible solution. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. They are excellent. 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. JANis a free national resource for employers looking for help with accommodations. 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. The law has helped hundreds of millions of workers in its relatively short history. 2 0 obj Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. 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. This is not the case employers are free to try accommodations and stop them if they do not work. Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. A Transfer Search may be another option. &. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. 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. An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. You can update your choices at any time in your settings. Please read our Cookie Notice. 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. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. Zappos. This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation. 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. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. 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.
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