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A Department should consider the factors listed in Section III. endstream endobj startxref For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. "Focus on disclosing only information that is need-to-know. Please log in as a SHRM member. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. 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. 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. This step is very important to the success of an accommodation. 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. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. These ideas, along with any ideas from the employee and employees medical provider, must be documented. These forms included medical inquiry, onboarding, trial, and other process forms. [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." The company was able to edit these forms to fit its needs. The assistant wanted the employee to sign a blanket medical release. Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. } After six months, she hadnt heard anything. hn U ji.3 The employer can switch the marginal functions performed by these two employees. To cope with a paradoxical labor market, HR pros still squarely focused on recruiting may need to re-evaluate role requirements, inclusion initiatives and more. The company did not receive information in response to this request. This process is initiated either by: The employee's written or verbal request for assistance, or. ", "Has that triggered the need for an interactive process? Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. Friends, family, and health professionals can request accommodations on an employees behalf. 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. By using this site, you accept and agree to be bound by these terms. 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. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? 184 0 obj <> endobj Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. This is a request for a reasonable accommodation. Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. 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. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. 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." It's not a terribly complicated idea, but many employers fall short in the execution. 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. Please enable scripts and reload this page. A large company wanted to standardize all of the accommodation requests it receives. 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. h\ CJ Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is The law has helped hundreds of millions of workers in its relatively short history. The interactive process will look different for everyone. 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. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. 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. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. 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 " Uncertainty from the start. The law requires that employees and employers engage in the Interactive Process. Use JAN as needed we are free, and an outside resource. o @ Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. The request doesnt have to include any specific terminology. ` "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. Employees can start the interactive process using any form, including verbal communication. Once youve identified an accommodation request, its best to take action immediately. 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. 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. "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. endstream endobj 189 0 obj <>stream III. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. 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. The following situations and solutions are real-life examples of accommodations that were made by JAN customers. l&#$/ h o u x ", 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. Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". The marginal functions of a second crew member include cleaning the small kitchen in the employee's lounge, which is something the first crew member can perform. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. 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. You can even have a trial period whenever theres doubt that an accommodation will be a good fit. 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. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. endobj 2023 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"); The interactive design is user-friendly and highly engaging. 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. Need help with a specific HR issue like coronavirus or FLSA? 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. "), That the supervisor said, "How can I help you? The sample Options Letter may be modified by an appointing power If there is more than one option, the employer should consider the preference of the employee. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." > g  f bjbj 4 X " when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance. It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. 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. 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 Second, the employer must also have notice of the employees desire to obtain some type of accommodation. They are excellent. Unnecessary delays are a violation of the ADA. 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. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. "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.". A federal agency recently updated its accommodation policy. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). To request permission for specific items, click on the reuse permissions button on the page where you find the item. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { 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. "Often the request doesn't come until, for example, theres a performance management action thats going on." Copyright You have successfully saved this page as a bookmark. Take the employee's expressed preferences into consideration. The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. IV. A Transfer Search, if appropriate, is a continuation of the Interactive Process. ", 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. ' ( 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 First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w vs_V\FG:FsZv7B,?/ iZ. Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? 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. He does not link his need for the new chair with a medical condition. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. 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. $("span.current-site").html("SHRM China "); After an employee requests accommodations, the employer must take the appropriate steps. Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. 222 0 obj <>stream Its a good idea to touch base with your employee on how things are going. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. By using this site, you accept and agree to be bound by these terms. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. Dont assume that thecosts of providing the accommodationwill be too expensive. Your Employee & Labor Relations team now supports both represented and non-represented employees. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. This area cover the performance management review program 'Achieve Together' and the Foundational Skills program. The Interactive Process can begin in a number of ways. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. Work with your employee to understand their specific challenges or limitations. But the FMLA doesnt provide paid leave, and employers say it can be difficult to administer. Another EEOC recommendation is to consider the employees preference. 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. Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations.