hn U ji.3 <> 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. A Department should consider the factors listed in Section III. Evaluate whether the employee can perform the job safely. If the employee cannot provide the necessary information, then medical documentation can be useful. 0 1 0 obj An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. "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. % We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 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. Thats because their request for a new chair isnt related to a medical condition. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. Circuit Court of Appeals decision shows. 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. "), That the supervisor said, "How can I help you? endobj Please enable scripts and reload this page. | 1 p.m. 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. Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. This is a request for a reasonable accommodation. However, in keeping with the spirit of the interactive process, an employee who is struggling to adequately perform should be asked if there is any type of assistance that might enable the employee to better perform his/her job functions and, along with other material describing employee support resources, the employee should be given information about campus policies/procedures applicable to employees with disabilities. This is the time to brainstorm and consider what might work. 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. o @ 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. According to the EEOC, the interactive process is not always required under the ADA. Understand how these limitations impact their essential job functions. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. An employee's request for Family and Medical Leave Act (FMLA) time off automatically triggers an employer's Americans with Disabilities Act (ADA) obligations, even absent a specific request for . After an employee requests accommodations, the employer must take the appropriate steps. endstream endobj startxref Make use of positive language and try to remain positive throughout the email. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. This includes with or without reasonable accommodation. Areasonable job accommodationmay include: Heres an example of a reasonable job accommodation: A cleaning crew works in an office building. Reasonable Accommodation and the Interactive Process - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? 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. $("span.current-site").html("SHRM China "); 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. EEOC: Medical Leave Request Initiates ADA Obligations - SHRM Unnecessary delays are a violation of the ADA. Welcome to the newest section of our site - Talent Acquisition! That the employer has provided what was requested. (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. Empower your employee to express concerns with their accommodations at any time. (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. In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. 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. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. 4 For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. They are excellent. Fram said he sees the same problem. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); "Written follow-up in both directions that confirms what the discussion has been. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. 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. This agreement should be documented. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. 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. 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u Fh^F`h Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). Employers must initiate an "interactive process" when an applicant or employee requests reasonable accommodations. <> Determine if any repair, maintenance, or replacement is necessary to any equipment. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. The interactive process is a conversation between an employer and an employee to determine if the employee requires a reasonable accommodation to perform the essential functions of their job and if so, what the accommodation (s) may be. Whether sending an email or letter, add a professional greeting that includes the person's name. 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. 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. Please log in as a SHRM member. 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. 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. Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. Here are some recommended steps to include in your checklist. 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 If it is a written letter, include a handwritten signature. How to engage in the 'Interactive Process' with an employee 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. Pay careful attention to medical-related issues employees bring to your attention. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is USE OWN DEPARTMENT LETTERHEAD SAMPLE: SEND TO EMPLOYEE WHO - California ", "Has that triggered the need for an interactive process? Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". ", Additionally, employers sometimes request or gather too much medical information, Loy said. This is a request for reasonable accommodation. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. 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. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. 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. III. 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.. How to Create a Robust Reasonable Accommodation Process - SHRM Should an Accommodation Request Automatically Trigger FMLA? 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. 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. This is not the case employers are free to try accommodations and stop them if they do not work. 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. hn CJ ji.3 The law has helped hundreds of millions of workers in its relatively short history. 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. It may also come as a result of administering FMLA leave or a workers compensation claim. + : UNIVERSITY OF CALIFORNIA, SAN DIEGO EMBED Word.Picture.6 SANTA BARBARA ( SANTA CRUZ BERKELEY ( DAVIS ( IRVINE ( LOS ANGELES ( MERCED ( RIVERSIDE ( SAN DIEGO ( SAN FRANCISCO Reasonable Accommodation Agreement Date: Dear [Mr./Ms. He does not link his need for the new chair with a medical condition. This is a request for a reasonable accommodation. ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. 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. 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. And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. 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. The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. That the supervisor didn't ask anything medical. stream 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. Friends, family, and health professionals can request accommodations on an employees behalf. As stated by the Third Circuit Court of Appeals in Taylor v. No Upcoming Events for Interactive Process. 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. On Feb. 24, 2015, the company issued the plaintiff a written warning as a result of poor attendance unrelated to FMLA-approved absences and advised that failure to improve her attendance would result in disciplinary action. Think of theinteractive processas collaborating with your employees to develop accommodations. 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. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. Additionally, don't use negative words as they have a bad impact. DOC JAN - Job Accommodation Network 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. Never assume an employee is disabled. The EEOC recommends that you analyze the job, its purpose, and its essential functions. No Remote Monthly Series Training for Interactive Process. Please log in as a SHRM member before saving bookmarks. Employee's Failure to Participate in Interactive Process Dooms ADA 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. PDF Request for Accommodation Interactive Process Checklist Form to Be After Completing FMLA, The Employer Uses The Interactive Process And However, they may be a useful tool for both employers and employees. Your Employee & Labor Relations team now supports both represented and non-represented employees. 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. Employee Letter and Email Examples - The Balance Careers <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> %PDF-1.5 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. Make use of words in such a way that . The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. "You rarely see an . 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. The Interactive Process can begin in a number of ways. The interactive process will look different for everyone. ADA Best Practices For Employers Engaging in an Interactive Process II. So its important to note that your employees request doesnt have to be in writing. The request doesnt have to include any specific terminology. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. "Focus on disclosing only information that is need-to-know. Please note that all such forms and policies should be reviewed by your legal . I ^ b h ) , z |n`n h\ B*OJ QJ ^J ph hn B*OJ QJ ^J ph h\ >*B*OJ QJ ^J ph $h\ h\ >*B*OJ QJ ^J ph $h\ hn >*B*OJ QJ ^J ph hn 56OJ QJ \]^J hn hn B*OJ QJ ^J ph h}R OJ QJ ^J hn OJ QJ ^J hn B*OJ QJ ^J ph hn OJ QJ ^J %6 7 C g S T 0 hFj!