Understanding The ADA's Interactive Process - Insperity And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. 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. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. "You rarely see an . 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. 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. 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. "If it wont work, you can show you did all you could have done. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. USE OWN DEPARTMENT LETTERHEAD SAMPLE: SEND TO EMPLOYEE WHO - California " 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. 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. Reasonable Accommodation and the Interactive Process If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. hbbd```b``:"kd6di`f0^ X|9$x hH : Dont prematurely end the process,"Schwarz said. Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. 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. Once again, the company agreed and allowed her to work from home from March 2014 until December 2014. Employee Letter and Email Examples - The Balance Careers Interactive Process - Freeman Rehabilitation Services 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. %PDF-1.5 Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. ' ( 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 The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. 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. The EEOCs Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act provides that as a general rule, the individual with a disability who has the most knowledge about the need for reasonable accommodation must inform the employer than an accommodation is needed. The request can be made verbally or in writing. The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. The interactive process can begin when the employee makes the request. Asking for all medical records will rarely, if ever, meet this test. That way, no one is surprised when the accommodation is revisited down the road. l&#$/ h o u x Determine if any repair, maintenance, or replacement is necessary to any equipment. } 0 Streamlining the Interactive Process When Accommodating Job Applicants, Tell 'Em About It: Educating the Workforce about the ADA & Accommodations, To Ask, or Not to Ask? Once accommodation options have been explored, the employer must choose what accommodation to implement. The company was able to edit these forms to fit its needs. These ideas, along with any ideas from the employee and employees medical provider, must be documented. All rights reserved. The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. 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. Fh^F`h This is a request for a reasonable accommodation. ", "Clarity is important," he said, "and getting things in writing adds to clarity. When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. hn CJ ji.3 Please log in as a SHRM member before saving bookmarks. <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> ", The employees 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. 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. 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. This documentation may also include the medical practitioners suggestions about potential accommodations. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. Accommodation options will be considered in discussions with the employee. Never assume an employee is disabled. In December 2014, the plaintiff's new supervisor made it clear that in the absence of an approved accommodation under the ADA, she was expected to be in the office beginning in the new year. (Supervisors should stay out of medical details as much as possible, Fram said.). Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. 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. ", 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. Your Employee & Labor Relations team now supports both represented and non-represented employees. For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space not why. 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. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. 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 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. A good idea is to include a discussion of the interactive process as part of your ADA policy. To request permission for specific items, click on the reuse permissions button on the page where you find the item. hVnF}LwYIn]m2Y$gnVUmP;gJ+Jh1LN[Vx0;(EfxTB-[e MJ r !w2e!CJVF4""5\IexNVr7Zr':A] ;90Zj5RlQJu9MUJrZ?fi%Pz66 ~E>yQ%^4mv2TP4& ^>r9yHk*@bM45Z]{Vx\i#sL#~wTGX*Wd9ElUozj(F$Y~(*L8rp!o_TMYe**5//Z"s5WMo*tpvjgOnaH6>Ia=YLEUp}C|X3rbartqs\A:7rg7J{|Ar#fQ}'>MS *PbX6b=*y/~'JOr!hgT.t-k]%~Ma!ED]J\Q68xE.~2TY$?G!2HSD Together you can discuss the potential impact of the accommodations. Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. 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. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { stream ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. Another EEOC recommendation is to consider the employees preference. PDF Reasonable Accommodation - National Association of Letter Carriers AFL-CIO 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. This notice does not need to disclose the employees specific condition. 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. You can update your choices at any time in your settings. No Remote Monthly Series Training for Interactive Process. McAfee & Taft A Professional Corporation. Employees can start the. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. If everything is working well, she continues to check in every six months. 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. 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. If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance. By using this site, you accept and agree to be bound by these terms. Interactive Process - AskJAN.org $(document).ready(function () { Please log in as a SHRM member. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. 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. This includes information on the essential job functions your employee can and cant do. A request for assistance or indication by the employee that some corrective measure may need to be taken can be made verbally and casually, as well as formally. 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." After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk. |^| ("I need an anti-glare screen."). ", Often, supervisors don't recognize an accommodation request or ignore the request, according to Beth Loy, principal consultant with the Job Accommodation Network (JAN), a program funded by a contract with U.S. Department of Labor's Office of Disability Employment Policy. Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". Once youve identified an accommodation request, its best to take action immediately. 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 endobj 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. Members can get help with HR questions via phone, chat or email. The employee does not have to formally notify the supervisor or department in writing. 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"); Before meeting with the employee, review the employee's current job description and any available Thats because their request for a new chair isnt related to a medical condition. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. What does antisemitic discrimination look like at work? While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. 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 law requires that employees and employers engage in the Interactive Process. Reasonable Accommodation | CRD - California 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. ", "When implementing an accommodation, supervisors sometimes disclose medical information,"Loy said. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. 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. Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. 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. This is a request for reasonable accommodation. hn U ji.3 stream Remember to only ask for the necessary medical information. 184 0 obj <> endobj 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. 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 company did not receive information in response to this request. An employee submitted an accommodation request for an ergonomic chair due to a back injury. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. These accommodations are specific to each individuals needs. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. They are excellent. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. Once an accommodation has been chosen, it is time to implement the accommodation. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? ; endobj ADA's Interactive Process Is a Two-Way Street - SHRM Please note that all such forms and policies should be reviewed by your legal . The human resources director informed him that the company policy is to only ask for what is absolutely necessary. After complaining to her supervisor, the supervisor talked with HR. Necessary information may include documentation of the disability and need for accommodation. ", 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. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. 1630.2(o)(3). %PDF-1.5 Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is n\3C[% First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. The process requires an individualized assessment of both the job and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation. 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. A human resources assistant was working with an electrician who needed accommodations related to seizures. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. Its a good idea to touch base with your employee on how things are going. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. + : 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. If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. This process is initiated either by: The employee's written or verbal request for assistance, or.
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