This includes with or without reasonable accommodation. By using this site, you accept and agree to be bound by these terms. Make use of positive language and try to remain positive throughout the email. Finally, the employee says, "I'm really having trouble getting out of bed in the morning. "), That the supervisor said, "How can I help you? In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. process will be maintained in your medical file, which is separate from your personnel file. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. All rights reserved. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. 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. *&edtb?iB!+"M@"8hzMC|;q Keep your message as short as possible. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. When expanded it provides a list of search options that will switch the search inputs to match the current selection. 4 0 obj Second, the employer must also have notice of the employees desire to obtain some type of accommodation. As stated by the Third Circuit Court of Appeals in Taylor v. ", "Clarity is important," he said, "and getting things in writing adds to clarity. A federal agency recently updated its accommodation policy. 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. ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. So it's important to note that your employee's request doesn't have to be in writing. [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." - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 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. Ultimately, she refused this proposal and instead sought intermittent FMLA leave that would allow her to leave at 2 p.m., and she immediately adjusted her schedule accordingly. And if still more ideas are needed, then the employer should consult with outside resources such as JAN, vocational rehabilitation, rehabilitation engineers, and disability-related organizations. Your Employee & Labor Relations team now supports both represented and non-represented employees. endobj Reasonable Accommodation - National Association of Letter Carriers AFL-CIO Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. 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. Members may download one copy of our sample forms and templates for your personal use within your organization. |^| 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. Other resources, such as the Job Accommodations Network (JAN), or your employee's medical provider, can give suggestions. | 1 p.m. Adobe PDF viewer is required for some of these documents. 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 Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. The human resources director informed him that the company policy is to only ask for what is absolutely necessary. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. } Never assume an employee is disabled. 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. For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. An employer that grants schedule adjustments that aren't required under the Americans with Disabilities Act (ADA) may later stop allowing such changes when the employee declines to help the employer identify a reasonable accommodation, a recent 5th U.S. 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. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. This notice does not need to disclose the employees specific condition. 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. Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. It was created to assist you while you are recovering. 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. 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;}'; Step 3: Get Job Descriptions in Order } Using the Interactive Process to Reach a Reasonable Accommodation. [See. Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. By using this site, you accept and agree to be bound by these terms. 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. 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. | 2 p.m. Determine if any repair, maintenance, or replacement is necessary to any equipment. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. Circumstances or the effectiveness of accommodations can change over time. You have successfully saved this page as a bookmark. For example, it is sufficient if the employer receives notice of treatment needed by an employee. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. There should be no ambiguity in the explanation of the change. "If there is one, go ahead and just do it." ", "Has that triggered the need for an interactive process? var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); 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. A good idea is to include a discussion of the interactive process as part of your ADA policy. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. ", 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 interactive process isnt always necessary, though. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> The interactive process will look different for everyone. Employers must also act promptly to initiate this discussion. > g  f bjbj 4 X " 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. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. HSmk0nv^- IA}(uNf:$+ifaGM0b_C } 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. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. This is a request for a reasonable accommodation. A human resources assistant was working with an electrician who needed accommodations related to seizures. The Equal Employment Opportunity Commission (EEOC) enforces the protections provided to employees with disabilities under the Americans with Disabilities Act (ADA). The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. What does antisemitic discrimination look like at work? Whether sending an email or letter, add a professional greeting that includes the person's name. "Often the request doesn't come until, for example, theres a performance management action thats going on." n\3C[% That the supervisor didn't ask anything medical. The purpose of an accommodation is to enable the employee to perform the essential functions of the job. Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." Dont prematurely end the process,"Schwarz said. Please note that all such forms and policies should be reviewed by your legal . If a Department Decides that the Proposed Accommodation(s) is Unreasonable. the employees disability and need for accommodation are obvious. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. 4 Work with your employee to understand their specific challenges or limitations. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organizations culture, industry, and practices. 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. Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. Pay careful attention to medical-related issues employees bring to your attention. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. o @ Necessary information may include documentation of the disability and need for accommodation. An important step in the performance review process is choosing the standard for the evaluation. 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. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. Fh^F`h 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. Select Accept to consent or Reject to decline non-essential cookies for this use. Remember to only ask for the necessary medical information. 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. 184 0 obj <> endobj One good approach is to withhold the employees name and identifying information from outside resources. Since a new individual took over the ADA Coordinator position for a community college, an effectiveness check for all accommodation approvals is required. 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. var temp_style = document.createElement('style'); This is considered an accommodation request. Together you can discuss the potential impact of the accommodations. Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. If it is a written letter, include a handwritten signature. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. After six months, she hadnt heard anything. stream 1. 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. ta SKN 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. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. There areperksto creating a company culture that welcomes employees with disabilities. The law requires that employees and employers engage in the Interactive Process. % Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. " <> Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." If there is more than one option, the employer should consider the preference of the employee. Zappos. But the supervisor should have enough training to know when its time to go to HR. 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. ", 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. 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. Once youve identified an accommodation request, its best to take action immediately. This area cover the performance management review program 'Achieve Together' and the Foundational Skills program. The law requires that employees and employers engage in the Interactive Process. After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk. First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. <>>> ", 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.". Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. Additionally, don't use negative words as they have a bad impact. 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"); Shortly thereafter, the company terminated the plaintiff's employment after she failed to report to work due to child care issues. Essential functionsare the basic job duties that an employee must be able to perform. (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. @ A B U V n o z { The interactive design is user-friendly and highly engaging. Think of theinteractive processas collaborating with your employees to develop accommodations. However, the company offered her the option of leaving work at 4 p.m. 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 When the need isn't obvious, more information will be helpful when discussing accommodations. 2 0 obj 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. 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. %PDF-1.5 % According to the EEOC, the interactive process is not always required under the ADA. They are excellent. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. 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. 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. This is a request for reasonable accommodation. Knowing When to Request Medical Information, What does "Undue Hardship" mean? SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. 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. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. 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. Communication is especially important if youve provided any assistive technology or equipment. Here at UC Berkeley, we value your growth and development throughout your career journey. The law has helped hundreds of millions of workers in its relatively short history. Your Accommodation Request Was Denied. 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. A Department should consider the factors listed in Section III. Before meeting with the employee, review the employee's current job description and any available 4 0 obj Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. ' ( 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 Employees can start the. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. You can even have a trial period whenever theres doubt that an accommodation will be a good fit. xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. 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. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. The EEOC recommends that you analyze the job, its purpose, and its essential functions. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. This includes information on the essential job functions your employee can and cant do. The Interactive Process can begin in a number of ways. The interactive process often begins when the employee makes an accommodation request. Once accommodation options have been explored, the employer must choose what accommodation to implement.