"You rarely see an . If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance. Please log in as a SHRM member before saving bookmarks. Its a good idea to touch base with your employee on how things are going. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. 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. c'`WpPs%<8 I\`aC~",&,b)qo)&ZG*#TFL*#QTy`^`t"d+p[|:n.Hmb]7Dx=>J ?|wadG 1fO7,m/I?viwMkO % Areasonable job accommodationmay include: Heres an example of a reasonable job accommodation: A cleaning crew works in an office building. endstream endobj 185 0 obj <>/Metadata 16 0 R/Pages 182 0 R/StructTreeRoot 32 0 R/Type/Catalog>> endobj 186 0 obj <>/MediaBox[0 0 612 792]/Parent 182 0 R/Resources<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI]>>/Rotate 0/StructParents 0/Tabs/S/Type/Page>> endobj 187 0 obj <>stream The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. Members may download one copy of our sample forms and templates for your personal use within your organization. A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. The interactive process often begins when the employee makes an accommodation request. One good approach is to withhold the employees name and identifying information from outside resources. Fh^F`h Dont prematurely end the process,"Schwarz said. 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', <> Make use of words in such a way that . 4 However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. Virtual & Washington, DC | February 26-28, 2023. 1. 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. Please purchase a SHRM membership before saving bookmarks. stream 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. var temp_style = document.createElement('style'); 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. 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. 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. hn U ji.3 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. Understand how these limitations impact their essential job functions. This documentation may also include the medical practitioners suggestions about potential accommodations. Should an Accommodation Request Automatically Trigger FMLA? The company was able to edit these forms to fit its needs. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. 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. ET, Webinar 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. Thats because their request for a new chair isnt related to a medical condition. Zappos. "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. And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. That there was followup, but that it stayed away from medical details. +R^_C%342hE0qmQSK[ x A human resources assistant was working with an electrician who needed accommodations related to seizures. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . process will be maintained in your medical file, which is separate from your personnel file. 1630.2(o)(3). The law requires that employees and employers engage in the Interactive Process. 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. Circuit Court of Appeals decision shows. Ask your employees if they have any thoughts on what might help. Step 3: Get Job Descriptions in Order An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. "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. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. 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;}'; ", 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.". Find the latest news and members-only resources that can help employers navigate in an uncertain economy. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. 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. Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. + : 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. Decision-making authority: Department head or designee. This is not the case employers are free to try accommodations and stop them if they do not work. No Past Exhibit Booths for Interactive Process. 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. 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. ", 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. 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. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. 1 0 obj He does not link his need for the new chair with a medical condition. Use JAN as needed we are free, and an outside resource. 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. &. 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." 2 0 obj ", "Clarity is important," he said, "and getting things in writing adds to clarity. This is the time to brainstorm and consider what might work. "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.". 4 0 obj Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. Asking for all medical records will rarely, if ever, meet this test. 222 0 obj <>stream Finally, the employee says, "I'm really having trouble getting out of bed in the morning. ", "Has that triggered the need for an interactive process? IV. 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. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". 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. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. Adobe PDF viewer is required for some of these documents. If there is any question concerning the nature of the limitation or appropriateness of an accommodation being considered, the supervisor should consult with the Vocational Rehabilitation Counselor in University Health Services. [See. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. "), That the supervisor said, "How can I help you? The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. endobj 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. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Read more 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. 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. Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. 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 endobj 189 0 obj <>stream If assistance is desired, please call the ACCES Consultant at (858) 888-8888. $('.container-footer').first().hide(); HSmk0nv^- IA}(uNf:$+ifaGM0b_C This is considered an accommodation request. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. Keep your message as short as possible. Together you can discuss the potential impact of the accommodations. Once the employer has identified the employees limitation that is causing a problem and has identified what that problem is, then the employer is ready to explore accommodation options. Essential functionsare the basic job duties that an employee must be able to perform. Don't hide your interactive process requirement, rather publicize it. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. "Interactive Process Checklist" any time they talk to the employee regarding these issues. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { Empower your employee to express concerns with their accommodations at any time. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. 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. 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. 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. } accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. e e e e e y y y 8 y * F f* h* h* h* h* h* h* - / Think of theinteractive processas collaborating with your employees to develop accommodations. This is a request for 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. Please note that all such forms and policies should be reviewed by your legal . In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. If an accommodation is not considered reasonable, refer to Sections IV and V below. 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. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? Your session has expired. (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. You can even have a trial period whenever theres doubt that an accommodation will be a good fit. %PDF-1.5 ", The employees request. 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. 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. 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. 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.". Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. After an employee requests accommodations, the employer must take the appropriate steps. 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. The accommodation [will begin or began] on [date] and end based upon future doctor visits. <> Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. 200 0 obj <>/Filter/FlateDecode/ID[<5D6158DB4243BF4189442C3921752F86>]/Index[184 39]/Info 183 0 R/Length 86/Prev 194116/Root 185 0 R/Size 223/Type/XRef/W[1 3 1]>>stream At this step, employers should be open to new ideas and new ways of doing things. $("span.current-site").html("SHRM China "); Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. 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. 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. In some cases, an accommodation stops being effective for various reasons such as: the employees limitations change, workplace equipment changes, the job changes, the workplace itself changes, or the accommodation becomes an undue hardship for the employer. % ta SKN The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. The request doesnt have to include any specific terminology. 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. o @ If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. Once an accommodation has been chosen, it is time to implement the accommodation. The purpose of an accommodation is to enable the employee to perform the essential functions of the job. Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. What does antisemitic discrimination look like at work? However, they may be a useful tool for both employers and employees. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. A good idea is to include a discussion of the interactive process as part of your ADA policy. When expanded it provides a list of search options that will switch the search inputs to match the current selection. Learn more in our Cookie Policy. According to the EEOC, the interactive process is not always required under the ADA. First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. 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. 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. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. 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. |^| Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." (For example, "I'm getting headaches from the glare from my computer screen.

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