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Before meeting with the employee, review the employee's current job description and any available 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. But the FMLA doesnt provide paid leave, and employers say it can be difficult to administer. process will be maintained in your medical file, which is separate from your personnel file. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) {
that employee's ability to perform the duties of his or her position, of the various options available to the employee, and to invite the employee to engage in an interactive process to develop an appropriate plan to resolve the employee's work-related medical issues. As part of this process, the EEOC recommends that employers: (1) Analyze the particular job involved and determine its purpose and essential functions; (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation; (3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and. <>
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{CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. If it is a written letter, include a handwritten signature. In other cases, they may not be able to suggest ideas, but may be able to say whether ideas under consideration will help overcome the employees limitations. l&#$/ h o u x 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. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. Its a good idea to touch base with your employee on how things are going. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. One good approach is to withhold the employees name and identifying information from outside resources. 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. The following list provides some guidelines. %
Remember to only ask for the necessary medical information. This includes with or without reasonable accommodation. Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. It's not a terribly complicated idea, but many employers fall short in the execution. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. Step 3: Get Job Descriptions in Order var temp_style = document.createElement('style');
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. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. Trello. Here are some recommended steps to include in your checklist. Learn more about your compensation, benefits and everything that goes into a Total Rewards package. 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." Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. 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`!m+@Y.M7o"ACP9gC0+y=8A+uvoE %}IZ"EwV@_[PZmm[8>^||'=biB@^ru.@{&a[J{h%dyplpy5g}c!@75e! After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? 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. Reasonable accommodation can include, but is not limited to, the following: Employees with disabilities may have separate rights to unpaid leave under the Federal Family and Medical Leave Act or the California Family Rights Act. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. Knowing When to Request Medical Information, What does "Undue Hardship" mean? Welcome to the newest section of our site - Talent Acquisition! The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. 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. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. [SHRM members-only toolkit:Accommodating Employees' Disabilities], In holding that the ADA discrimination and FMLA retaliation claims could not proceed to trial, the court noted the company's legitimate basis for its termination decisionnamely, excessive absenteeism and the well-established principle that "an employee's failure to show up for work is a legitimate reason for firing her." For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. Once the employer has notice of a disability and the need for an accommodation, the ADA requires (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employees request; and (3) offering an accommodation that is reasonable and effective.. The request doesnt have to include any specific terminology. The Interactive Process can begin in a number of ways. Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. 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. 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). If assistance is desired, please call the ACCES Consultant at (858) 888-8888. The law requires that employees and employers engage in the Interactive Process. Need help with a specific HR issue like coronavirus or FLSA? 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. *&edtb?iB!+"M@"8hzMC|;q Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. 1630.2(o)(3). c'`WpPs%<8
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The interactive process will look different for everyone. 3 0 obj
If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. ", "When implementing an accommodation, supervisors sometimes disclose medical information,"Loy said. 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. 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. 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. stream
The law has helped hundreds of millions of workers in its relatively short history. e e e e e y y y 8 y * F f* h* h* h* h* h* h* - / 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. Friends, family, and health professionals can request accommodations on an employees behalf. The law does not require the use of these or any other forms to make a request for a reasonable accommodation or to engage in an effective, good faith interactive process. 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. 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. These forms included medical inquiry, onboarding, trial, and other process forms. This is a request for a reasonable accommodation. This step is very important to the success of an accommodation. Members can get help with HR questions via phone, chat or email. 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. endobj
The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. "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 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 point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. 2 0 obj
DOCUMENTING CURRENT ACCOMMODATIONS 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. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. $(document).ready(function () {
Evaluate whether the employee can perform the job safely. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w
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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. Choose someone to ensure that the request for accommodations gets processed. Fh^F`h As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. The description of the [modified/alternate] employment is as follows (include description of accommodation here):
This is a temporary accommodation, not a permanent position. 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. ", Often, supervisors don't recognize an accommodation request or ignore the request, according to Beth Loy, principal consultant with the Job Accommodation Network (JAN), a program funded by a contract with U.S. Department of Labor's Office of Disability Employment Policy. Think of theinteractive processas collaborating with your employees to develop accommodations. %%EOF
Essential functionsare the basic job duties that an employee must be able to perform. Together you can discuss the potential impact of the accommodations. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. h\ CJ ", The employees request. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. Employers must also act promptly to initiate this discussion. This is not the case employers are free to try accommodations and stop them if they do not work. the employees disability and need for accommodation are obvious. }
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Determine if any repair, maintenance, or replacement is necessary to any equipment. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. ' These ideas, along with any ideas from the employee and employees medical provider, must be documented. Since a new individual took over the ADA Coordinator position for a community college, an effectiveness check for all accommodation approvals is required. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. A Transfer Search may be another option. endobj
", 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.". Reviewing current vacancies within the department. The following persons will be present at this meeting: [names of meeting participants]. hn CJ ) $ % A B c ) * 6 gd] F^F 8&#$$d &d N P )#P &#$$d &d N P a&#$-D(M "Written follow-up in both directions that confirms what the discussion has been. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. 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. endobj
Dont assume that thecosts of providing the accommodationwill be too expensive. So when, exactly, does an employer have adequate or sufficient notice to initiate the interactive discussion without receiving a request for accommodation from the employee? The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. 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. III. By using this site, you accept and agree to be bound by these terms. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. hb```TB ea8 ,2^2o-r
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|t3utWD1$1}I? Make use of words in such a way that . Another EEOC recommendation is to consider the employees preference. 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. Keep your message as short as possible. At this step, employers should be open to new ideas and new ways of doing things. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. Communication is especially important if youve provided any assistive technology or equipment. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u
The accommodation [will begin or began] on [date] and end based upon future doctor visits. The human resources director informed him that the company policy is to only ask for what is absolutely necessary. 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. No Remote Monthly Series Training for Interactive Process. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. Please read our Cookie Notice. Your Accommodation Request Was Denied. This agreement should be documented. 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. This is a request for reasonable accommodation. The company was able to edit these forms to fit its needs. 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 employers, the hard part often is knowing when to kick off the process according to Adam Sencenbaugh, a partner at Haynes and Boone, LLP. 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. endstream
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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. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? 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. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. 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. No Past In-Person Trainings for Interactive Process. This process is initiated either by: The employee's written or verbal request for assistance, or. It was created to assist you while you are recovering. So its important to note that your employees request doesnt have to be in writing. 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. After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk. That there was followup, but that it stayed away from medical details. All rights reserved. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. The EEOC recommends that you analyze the job, its purpose, and its essential functions. These accommodations are specific to each individuals needs. But this all counts as the interactive process. The important thing for employers to remember is not to ask for too much information. If it is an email, include an email signature with your contact information. Employees can start the interactive process using any form, including verbal communication. ", "Clarity is important," he said, "and getting things in writing adds to clarity. However, they may be a useful tool for both employers and employees. 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. <>
Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. According to the EEOC, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation" when requesting an accommodation. A federal agency recently updated its accommodation policy. The company did not receive information in response to this request. Reasonable Accommodation - National Association of Letter Carriers AFL-CIO 1. ta SKN 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. 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. 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 most important way to monitor accommodations is to encourage ongoing communication. There areperksto creating a company culture that welcomes employees with disabilities. External resources to help identify whether accommodation is possible include: SAMPLE REQUEST FOR REASONABLE ACCOMMODATION PACKAGE: ENGLISH (PDF), SAMPLE REQUEST FOR REASONABLE ACCOMMODATION PACKAGE: SPANISH (PDF), Communication Center: 800-884-1684 (voice), 800-700-2320 (TTY) or, Department of Rehabilitation Disability Access Services, EEOCs fact sheet on small employers and reasonable accommodation, EEOCs enforcement guidance on reasonable accommodation under federal law. The employee does not have to formally notify the supervisor or department in writing. Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". 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. Court decisions interpreting the ADA provide some general principles. 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. Employees can start the. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary.