Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. 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 description of the [modified/alternate] employment is as follows (include description of accommodation here):
This is a temporary accommodation, not a permanent position. These ideas, along with any ideas from the employee and employees medical provider, must be documented. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. 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. Determine if any repair, maintenance, or replacement is necessary to any equipment. {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w
vs_V\FG:FsZv7B,?/ iZ. Need help with a specific HR issue like coronavirus or FLSA? endobj
", "On the communication side, one of the really useful tools is documentation," Schwarz said. (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. 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. Step 1 - Create a policy. Be open to doing things a different way. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. Notice may also come in the form of objective proof, such as sudden or increasing inability to perform job functions or other physical manifestations of symptoms that are readily observable to others in the workplace. 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." If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. endobj
Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. If the employee refuses to make a good faith effort to perform the essential functions of his/her job using a reasonable accommodation offered by the supervisor, the employee and supervisor should re-initiate the Interactive Process, working with the department and the Vocational Rehabilitation group, and Employee Relations to identify alternatives. temp_style.textContent = '.ms-rtestate-field > p:first-child.is-empty.d-none, .ms-rtestate-field > .fltter .is-empty.d-none, .ZWSC-cleaned.is-empty.d-none {display:block !important;}';
The standard of proof required here is low: when an employee continues to come to work, and continues to perform at least some of his or her essential duties, employers are encouraged to proceed with the interactive process. l&#$/ h o u x Once again, the company agreed and allowed her to work from home from March 2014 until December 2014. Employee Signature:__________________________________Date:____________
Supervisor Signature:__________________________________Date:____________
# % & = > ? 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. If there is more than one option, the employer should consider the preference of the employee. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. <>>>
In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. 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. 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. 4 0 obj
If there is no solution, the best thing is your documentation showing that you did explore accommodation options. Understand how these limitations impact their essential job functions. 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. Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. Its a good idea to touch base with your employee on how things are going. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. 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. endobj
Whether sending an email or letter, add a professional greeting that includes the person's name. When expanded it provides a list of search options that will switch the search inputs to match the current selection. However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. 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. 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. o @
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. 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. After complaining to her supervisor, the supervisor talked with HR. No Upcoming Events for Interactive Process. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? "You rarely see an . 2 0 obj
That there was followup, but that it stayed away from medical details. ' 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. "), That the supervisor said, "How can I help you? 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. 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. The interactive design is user-friendly and highly engaging. For example, it is sufficient if the employer receives notice of treatment needed by an employee. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. Never assume an employee is disabled. The law requires that employees and employers engage in the Interactive Process. Please enable scripts and reload this page. By using this site, you accept and agree to be bound by these terms. hn CJ ) $ % A B c ) * 6 gd] F^F 8&#$$d &d N P )#P &#$$d &d N P a&#$-D(M 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.. 1 0 obj
Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. 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. The following list provides some guidelines. 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. <>
Keep it brief. Our focus on the People & Organization Development Team is to ensure that we are giving you the growth and development opportunities at the #1 public university in the world. 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. This is a request for a reasonable accommodation. 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). 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.]. A human resources assistant was working with an electrician who needed accommodations related to seizures. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. 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. The California Fair Employment and Housing Act requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship. stream
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. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. ", "Document the whole thing from start to finish either you did the process or you didnt,"he said. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. If it is a written letter, include a handwritten signature. 2023 And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. No Past Exhibit Booths for Interactive Process. Members can get help with HR questions via phone, chat or email. You can update your choices at any time in your settings. ("I need an anti-glare screen."). They are excellent. ", 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. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). If the employee requests a type of assistance the supervisor may simply provide it (without any reference to whether the request is disability-related), or the supervisor may ask if the assistance is being requested as an accommodation to a disability (and if the response is affirmative, proceed under campus procedures for accommodating employees with disabilities). No Past Recorded Modules for Interactive Process. 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. Learn more in our Cookie Policy. Whenever a supervisor decides not to grant an employee's request for assistance (even when the assistance has not been identified as a request for accommodation of a disability), the best practice is to provide the employee with the campus policies/procedures pertinent to accommodation of employees with disabilities. A Deconstructive Series for ADA Terminology, What to Include in Your ADA/Accommodation Toolkit, California Reasonable Accommodation Package, EEOC's Reasonable Accommodation, Establishing Procedures to Facilitate the Provision of, JAN Just-in-Time Module: Interactive Process, U.S. Here at UC Berkeley, we value your growth and development throughout your career journey. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. "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.". ", "Has that triggered the need for an interactive process? }
Using the Interactive Process to Reach a Reasonable Accommodation. Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. 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. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. 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. Make use of positive language and try to remain positive throughout the email. Then select the most appropriate accommodation for you and your employee. The EEOCs recommended starting point is to use an interactive process once a request has been made. Welcome to the newest section of our site - Talent Acquisition! Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. ET, Webinar The interactive process can begin when the employee makes the request. 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. The Interactive Process can begin in a number of ways. Unnecessary delays are a violation of the ADA. Adobe PDF viewer is required for some of these documents. process will be maintained in your medical file, which is separate from your personnel file. "If there is one, go ahead and just do it." 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. It is with the understanding that after each future doctor visits you will provide a medical update indicating either a release to perform the essential functions of your position or information describing updated functional limitations, so that a determination can be made regarding continuation of the temporary accommodation. Select Accept to consent or Reject to decline non-essential cookies for this use. II. This is considered an accommodation request. 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. Your Employee & Labor Relations team now supports both represented and non-represented employees. This includes information on the essential job functions your employee can and cant do. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. The following persons will be present at this meeting: [names of meeting participants]. This area cover the performance management review program 'Achieve Together' and the Foundational Skills program. 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. Court decisions interpreting the ADA provide some general principles. An important step in the performance review process is choosing the standard for the evaluation. Work with your employee to understand their specific challenges or limitations. Your Accommodation Request Was Denied. If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. 200 0 obj
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Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. 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', 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. Lawsuits allege Kroger payroll transition glitch led to missed, incorrect paychecks, Quiet Black History Month a warning sign, DEI pros say, Starbucks faces corporate employee revolt, Everything employers must know on employee development, Boost Employee Engagement with Small Moments of Joy at Work, Winning the War for Talent: Why On-Demand Pay Is Becoming the Must-Have Benefit to Get and Keep the Best Employees, QVC, HSN parent lays off 12% of its workforce, How layoffs can have negative long-term consequences for companies, How to address the lack of hybrid work guidelines, Top 10 Workplace Trends for Thriving Work Environments, Caregiving Support: A Smart Investment for Employers in an Uncertain Economy, 5 Workplace Gaps Employers Cant Afford to Ignore, Top Compensation Sins HR Execs Must Avoid, Rethinking Population Health and the Intersection of the Primary Care Experience, NLRB judge: Starbucks committed egregious misconduct during Buffalo-area union drive, Manufacturer settles for $460K over CEOs alleged discriminatory age-based comments, What the person said when he or she came to the supervisor. "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. After an employee requests accommodations, the employer must take the appropriate steps. Step 3: Get Job Descriptions in Order "Written follow-up in both directions that confirms what the discussion has been. One good approach is to withhold the employees name and identifying information from outside resources. Please log in as a SHRM member before saving bookmarks. endobj
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. 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. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean?