Using the Interactive Process to Reach a Reasonable Accommodation. Uncertainty from the start. This notice does not need to disclose the employees specific condition. 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 Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. External resources to help identify whether accommodation is possible include: SAMPLE REQUEST FOR REASONABLE ACCOMMODATION PACKAGE: ENGLISH (PDF), SAMPLE REQUEST FOR REASONABLE ACCOMMODATION PACKAGE: SPANISH (PDF), Communication Center: 800-884-1684 (voice), 800-700-2320 (TTY) or, Department of Rehabilitation Disability Access Services, EEOCs fact sheet on small employers and reasonable accommodation, EEOCs enforcement guidance on reasonable accommodation under federal law. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. Together you can discuss the potential impact of the accommodations. <> The Equal Employment Opportunity Commission (EEOC) enforces the protections provided to employees with disabilities under the Americans with Disabilities Act (ADA). 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. 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. ", "Clarity is important," he said, "and getting things in writing adds to clarity. After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk. Circuit Court of Appeals decision shows. The Interactive Process can begin in a number of ways. That the employer has provided what was requested. 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Reasonable Accommodation - National Association of Letter Carriers AFL-CIO Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. Circumstances or the effectiveness of accommodations can change over time. Your session has expired. 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. 3 0 obj <> Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." $("span.current-site").html("SHRM China "); First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. 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. Adobe PDF viewer is required for some of these documents. This area cover the performance management review program 'Achieve Together' and the Foundational Skills program. 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. Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. ", Additionally, employers sometimes request or gather too much medical information, Loy said. No Past Exhibit Booths for Interactive Process. 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. Employees Responsibilities: Work within the written medical limitations Provide medical updates of functional limitations If taken off work by your doctor, notify supervisor and [name], ACCES Specialist. %PDF-1.5 It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. An important step in the performance review process is choosing the standard for the evaluation. 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 procedures apply for employees covered by the Americans with Disabilities Act (ADA), The California Fair Employment and Housing Act and/or Sections 503/504 of the 1973 Rehabilitation Act. <> Members may download one copy of our sample forms and templates for your personal use within your organization. The interactive design is user-friendly and highly engaging. Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. 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. A human resources assistant was working with an electrician who needed accommodations related to seizures. Once an accommodation has been chosen, it is time to implement the accommodation. Choose someone to ensure that the request for accommodations gets processed. If it is an email, include an email signature with your contact information. The interactive process isnt always necessary, though. Then select the most appropriate accommodation for you and your employee. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. 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. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. @ A B U V n o z { Topics covered: Employee learning, training, onboarding, mentoring, career development and more. 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. 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 p.m. 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. 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. If on account of disability an employee continues not to perform the essential functions of the job, either because s/he refuses to utilize offered accommodations or because even reasonable accommodations do not enable him/her to perform the essential functions of the job, the employee may be eligible for medical separation. The law requires that employees and employers engage in the Interactive Process. For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space not why. endstream endobj startxref 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." } An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. Employers must also act promptly to initiate this discussion. Accommodations Beyond Job Performance = Compliance and Inclusion, Changing a Supervisor as an Accommodation under the ADA, Cognitive Impairment and the Interactive Process, Good Deeds Not Punished: Dispelling the Idea of Precedent Setting and the ADA, Out with the Old, In with the NewSupervisor, Providing Temporary Accommodation Solutions, Recognizing an Accommodation Request Under the ADA. Be open to doing things a different way. However, they may be a useful tool for both employers and employees. Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. No Upcoming Events for Interactive Process. Members may download one copy of our sample forms and templates for your personal use within your organization. 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. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. The EEOC recommends that you analyze the job, its purpose, and its essential functions. Please read our Privacy Notice, Terms of Use, Cookie Notice, CCPA Notice, and Website Accessibility Policy. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { The interactive process can begin when the employee makes the request. Welcome to the newest section of our site - Talent Acquisition! (4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer. When the need isn't obvious, more information will be helpful when discussing accommodations. Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. It was created to assist you while you are recovering. Determine if any repair, maintenance, or replacement is necessary to any equipment. 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. Members can get help with HR questions via phone, chat or email. This documentation may also include the medical practitioners suggestions about potential accommodations. ", 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. As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. The most important way to monitor accommodations is to encourage ongoing communication. 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. 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. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. hn UVmH nH u hn jD hn U %PDF-1.5 Dont prematurely end the process,"Schwarz said. What Now? ta SKN 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. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. var temp_style = document.createElement('style'); 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 $("span.current-site").html("SHRM MENA "); This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". Other options, such as a leave of absence or reduced schedule, exist and should be evaluated in light of what is permitted under policy and contract. If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. If the employee refuses to make a good faith effort to perform the essential functions of his/her job using a reasonable accommodation offered by the supervisor, the employee and supervisor should re-initiate the Interactive Process, working with the department and the Vocational Rehabilitation group, and Employee Relations to identify alternatives. Zappos. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. The EEOCs Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act provides that as a general rule, the individual with a disability who has the most knowledge about the need for reasonable accommodation must inform the employer than an accommodation is needed. The request can be made verbally or in writing. Box 370, San Carlos CA 94070 Phone: 650-595-4447 ~ Fax: 866-804-0574 dfreeman@freemanrehabilitationservices.com Interactive Process Here are links to a sample interactive process letter to employees and charts. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. 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. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." If a disability precludes an employee from performing one or more essential job functions, the Department and employee, in consultation with Vocational Rehabilitation, Employee Relations, and other offices as necessary, should begin the Interactive Process. }); if($('.container-footer').length > 1){ The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. This includes information on the essential job functions your employee can and cant do. "Focus on disclosing only information that is need-to-know. Your Employee & Labor Relations team now supports both represented and non-represented employees. 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. 2 0 obj | 1 p.m. 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. All rights reserved. &. 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. 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. Use JAN as needed we are free, and an outside resource. 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. Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. 1 0 obj Never assume an employee is disabled. 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. Trello. o @ An employee submitted an accommodation request for an ergonomic chair due to a back injury. 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. "Often the request doesn't come until, for example, theres a performance management action thats going on." For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. 222 0 obj <>stream You can update your choices at any time in your settings. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. "You rarely see an . 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. > g  f bjbj 4 X " "), That the supervisor said, "How can I help you? The employee does not need to use any magic language when making the request, and need not reference the ADA or specifically use the term reasonable accommodation. This notice triggers the employers obligation to initiate the interactive process. Ask your employees if they have any thoughts on what might help. Virtual & Washington, DC | February 26-28, 2023. Employees can start the. %PDF-1.5 % Keep your message as short as possible. Step 3: Get Job Descriptions in Order McAfee & Taft A Professional Corporation. 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. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. 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. Finally, the employee says, "I'm really having trouble getting out of bed in the morning. Keep it brief. Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. Read more 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. Another EEOC recommendation is to consider the employees preference. The following situations and solutions are real-life examples of accommodations that were made by JAN customers. But this all counts as the interactive process. ", The employees request. 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. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is Before meeting with the employee, review the employee's current job description and any available We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. This process is initiated either by: The employee's written or verbal request for assistance, or. This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation. 2023 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. Once accommodation options have been explored, the employer must choose what accommodation to implement. IV. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. 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. Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. Work with your employee to understand their specific challenges or limitations. ` Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. If an accommodation is not considered reasonable, refer to Sections IV and V below. HSmk0nv^- IA}(uNf:$+ifaGM0b_C Make use of positive language and try to remain positive throughout the email. 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 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. "If there is one, go ahead and just do it." One way an employer can ensure effective communication with an employee who has requested an accommodation is to promptly schedule a meeting to discuss the employee's request. III. Since a new individual took over the ADA Coordinator position for a community college, an effectiveness check for all accommodation approvals is required. 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. Following . If assistance is desired, please call the ACCES Consultant at (858) 888-8888. ; Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. These accommodations are specific to each individuals needs. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. For example, it is sufficient if the employer receives notice of treatment needed by an employee. 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. stream And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. 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 Make a request for an accommodation verbally, in writing, and/or using one of the above methods, to the RARC, the agency Workplace Equality Compliance Officer (WECO), a Deciding Official (typically the first line supervisor/manager), the servicing human resources office, or any agency employee connected with the job application process, as Here are some recommended steps to include in your checklist. Need help with a specific HR issue like coronavirus or FLSA? Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. 1630.2(o)(3). Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff.