Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. |^| Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. This documentation may also include the medical practitioners suggestions about potential accommodations. 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. Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. 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. This notice does not need to disclose the employees specific condition. Remember to only ask for the necessary medical information. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. 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. ET, Webinar ", 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.". "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. 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. Let HR Dive's free newsletter keep you informed, straight from your inbox. The employee does not have to formally notify the supervisor or department in writing. If an accommodation is not considered reasonable, refer to Sections IV and V below. "), That the supervisor said, "How can I help you? Your session has expired. 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. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. No Remote Monthly Series Training for Interactive Process. Once accommodation options have been explored, the employer must choose what accommodation to implement. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 4 0 obj For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. endobj Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. No Past Recorded Modules for Interactive Process. After Completing FMLA, The Employer Uses The Interactive Process And Lawfully Terminated Its Employee The crossroad between the protections of the FMLA and the ADA is somewhat difficult to navigate. Please read our Cookie Notice. But the FMLA doesnt provide paid leave, and employers say it can be difficult to administer. The law requires that employees and employers engage in the Interactive Process. Court decisions interpreting the ADA provide some general principles. Once an accommodation has been chosen, it is time to implement the accommodation. Once again, the company agreed and allowed her to work from home from March 2014 until December 2014. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. The ability of employers and their managerial staff to recognize requests is important. You can update your choices at any time in your settings. Thats because their request for a new chair isnt related to a medical condition. xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. These forms included medical inquiry, onboarding, trial, and other process forms. 2 0 obj 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. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. Work with your employee to understand their specific challenges or limitations. The assistant wanted the employee to sign a blanket medical release. The employer can switch the marginal functions performed by these two employees. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. When the need isn't obvious, more information will be helpful when discussing accommodations. A Transfer Search is a process that may be available to employees who cannot perform the essential functions of their own position for an extended period of time, but are able to work in other jobs. 1630.2(o)(3). 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. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. Should an Accommodation Request Automatically Trigger FMLA? Please note that all such forms and policies should be reviewed by your legal . " Before sharing any final decision with the employee, the Department should consult with the Disability Case Management Counselor, Employee Relations and the Departmental Human Resources Manager. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. Members may download one copy of our sample forms and templates for your personal use within your organization. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. It was created to assist you while you are recovering. No Past In-Person Trainings for Interactive Process. var currentUrl = window.location.href.toLowerCase(); 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. The law has helped hundreds of millions of workers in its relatively short history. wy}v%,V(f8T8b@c9\8u8K C17+Y:AB9*8r3wBA=kXP2c#:y]fJupQ0@@/I(-qRC> .1FENSSbi/8fkc//`Ny!6rO"Rd0Z7jN)43/WU!HN(tj&]l When in doubt, ask for clarification on the request and why. A good idea is to include a discussion of the interactive process as part of your ADA policy. 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. 4 0 obj 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. 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. Welcome to the newest section of our site - Talent Acquisition! If it is a written letter, include a handwritten signature. "Written follow-up in both directions that confirms what the discussion has been. The checklist and any notes should be maintained in a separate confidential medical file for that employee. Never assume an employee is disabled. 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. The company was able to edit these forms to fit its needs. 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. 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! The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. Other resources, such as the Job Accommodations Network (JAN), or your employee's medical provider, can give suggestions. + : 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. IV. A Department should consider the factors listed in Section III. That the supervisor didn't ask anything medical. ", Additionally, employers sometimes request or gather too much medical information, Loy said. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. ", The employees request. "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 sample Options Letter may be modified by an appointing power } The interactive design is user-friendly and highly engaging. 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. Employees last name], We have received your medical release from your doctor, [name] dated [date]. However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. 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. The request doesnt have to include any specific terminology. Knowing When to Request Medical Information, What does "Undue Hardship" mean? 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. Keep it brief. He does not link his need for the new chair with a medical condition. Pay careful attention to medical-related issues employees bring to your attention. (Supervisors should stay out of medical details as much as possible, Fram said.). A federal agency recently updated its accommodation policy. Members may download one copy of our sample forms and templates for your personal use within your organization. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. 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 Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. endobj Topics covered: National employment laws, harassment, accommodations, training, and more. 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. 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"); Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. Therefore, any time an employee indicates that he/she is having a problem and the problem is related to a medical condition, the employer should consider whether the employee is making a request for accommodation under the ADA. Your Employee & Labor Relations team now supports both represented and non-represented employees. 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. Fh^F`h The law requires that employees and employers engage in the Interactive Process. "Often the request doesn't come until, for example, theres a performance management action thats going on." Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. Step 1 - Create a policy. 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 there is one, go ahead and just do it." If everything is working well, she continues to check in every six months. It's not a terribly complicated idea, but many employers fall short in the execution. The interactive process can begin when the employee makes the request. So its important to note that your employees request doesnt have to be in writing. However, the company offered her the option of leaving work at 4 p.m. No Upcoming Events for Interactive Process. 1 0 obj ", Sencenbaugh said that when ADA issues are intertwined with performance issues, employers should always consider how its actions will look to the employee and to a jury a year from now. If there is a termination, he said, all the cards are on the table. The purpose of an accommodation is to enable the employee to perform the essential functions of the job. o @ 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. Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. This includes information on the essential job functions your employee can and cant do. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. Unnecessary delays are a violation of the ADA. 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. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. <> But the supervisor should have enough training to know when its time to go to HR. If there is no solution, the best thing is your documentation showing that you did explore accommodation options. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. "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. Essential functionsare the basic job duties that an employee must be able to perform. } 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. Friends, family, and health professionals can request accommodations on an employees behalf. Before meeting with the employee, review the employee's current job description and any available ' ( 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 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. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. 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. 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. ` 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. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. 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. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. 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. 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. III. 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. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. What Now? 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). h\ CJ Additionally, don't use negative words as they have a bad impact. McAfee & Taft A Professional Corporation. 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.. After six months, she hadnt heard anything. 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. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. 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. After complaining to her supervisor, the supervisor talked with HR. Reviewing current vacancies within the department. Here are some recommended steps to include in your checklist. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. To request permission for specific items, click on the reuse permissions button on the page where you find the item. Make use of words in such a way that . The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. Understand how these limitations impact their essential job functions. This step is very important to the success of an accommodation. 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. Read more 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. 2023 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. (For example, "I'm getting headaches from the glare from my computer screen. 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. 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. This is not the case employers are free to try accommodations and stop them if they do not work. 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. 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. l&#$/ h o u x Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. As stated by the Third Circuit Court of Appeals in Taylor v. 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.