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. SHRM Employment Law & Compliance Conference, ADAs Interactive Process Is a Two-Way Street, New OSHA Guidance Clarifies Return-to-Work Expectations, Trump Suspends New H-1B Visas Through 2020, Faking COVID-19 Illness Can Have Serious Consequences, White House Takes Action Against Migrant Child Labor, EEOC Lawsuit Highlights Cancer Discrimination in the Workplace. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. After complaining to her supervisor, the supervisor talked with HR. <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. 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. 2 0 obj Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. 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. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. %PDF-1.5 Here are some recommended steps to include in your checklist. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. Understand how these limitations impact their essential job functions. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. 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. stream They are excellent. It was created to assist you while you are recovering. $("span.current-site").html("SHRM China "); The following is a brief summary of the Interactive Process: Step 1 Invite the employee to participate in assessing return-to-work options and alternatives The CA Dept. 1. Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? When in doubt, ask for clarification on the request and why. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. The law requires that employees and employers engage in the Interactive Process. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. An employee submitted an accommodation request for an ergonomic chair due to a back injury. Empower your employee to express concerns with their accommodations at any time. Following . Please note that all such forms and policies should be reviewed by your legal . Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. Remember to only ask for the necessary medical information. The request can also come from someone other than the employee. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. You can even have a trial period whenever theres doubt that an accommodation will be a good fit. 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. If it is a written letter, include a handwritten signature. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. So its important to note that your employees request doesnt have to be in writing. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. Communication is especially important if youve provided any assistive technology or equipment. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. This is a request for a reasonable accommodation. > g  f bjbj 4 X " (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. 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 your message as short as possible. 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! Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. +R^_C%342hE0qmQSK[ x The company was able to edit these forms to fit its needs. Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. 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. Determine if any repair, maintenance, or replacement is necessary to any equipment. But the supervisor should have enough training to know when its time to go to HR. Thats because their request for a new chair isnt related to a medical condition. 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. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. 2 0 obj But this all counts as the interactive process. ET, Webinar (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. Please log in as a SHRM member. Essential functionsare the basic job duties that an employee must be able to perform. Accommodation options will be considered in discussions with the employee. Copyright For example, if an employee with a non-visible disability indicates she is having trouble completing her work tasks because of her disability, the employer does not have enough information to provide effective accommodations. I ^ b h ) , z |n`n h\ B*OJ QJ ^J ph hn B*OJ QJ ^J ph h\ >*B*OJ QJ ^J ph $h\ h\ >*B*OJ QJ ^J ph $h\ hn >*B*OJ QJ ^J ph hn 56OJ QJ \]^J hn hn B*OJ QJ ^J ph h}R OJ QJ ^J hn OJ QJ ^J hn B*OJ QJ ^J ph hn OJ QJ ^J %6 7 C g S T 0 hFj! That way, no one is surprised when the accommodation is revisited down the road. Please read our Cookie Notice. 2023 the employees disability and need for accommodation are obvious. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { Then select the most appropriate accommodation for you and your employee. 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. 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. (For example, "I'm getting headaches from the glare from my computer screen. Your Accommodation Request Was Denied. Please purchase a SHRM membership before saving bookmarks. 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. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. This notice does not need to disclose the employees specific condition. IV. ta SKN Uncertainty from the start. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. 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 "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. endstream endobj 188 0 obj <>stream 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.. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. One good approach is to withhold the employees name and identifying information from outside resources. A good idea is to include a discussion of the interactive process as part of your ADA policy. Jonathan E. O'Connell, SHRM-SCP, is a labor and employment attorney practicing with the federal government in Washington, D.C. [Visit SHRM's resource page on theAmericans with Disabilities Act.]. II. Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. When the need isn't obvious, more information will be helpful when discussing accommodations. 184 0 obj <> endobj ' Time Warner Cable Texas LLC hired the plaintiff in October 2012 as a workforce analyst. 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. 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. ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable 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. Employees can start the interactive process using any form, including verbal communication. Whether sending an email or letter, add a professional greeting that includes the person's name. Never assume an employee is disabled. A Transfer Search, if appropriate, is a continuation of the Interactive Process. Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. So it's important to note that your employee's request doesn't have to be in writing. Asking for all medical records will rarely, if ever, meet this test. Assess the effectiveness of the accommodation(s) in enabling the employee to perform the essential functions of the job. (Marginal functionsare responsibilities that, once altered or removed, dont change the primary purpose of the job.) Court decisions interpreting the ADA provide some general principles. Titled " The Zappos Culture Book ," this handbook highlights the company's dedication to workplace culture. 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. The accommodation [will begin or began] on [date] and end based upon future doctor visits. The Interactive Process can begin in a number of ways. 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. endstream endobj 189 0 obj <>stream Accommodation and Compliance: Interactive Process, EEOC (Reasonable Accommodation and Undue Hardship (EEOC Guidance), JAN's Effective Accommodation Practice Series: Interactive Process and Service Providers, Employers' Practical Guide to Reasonable Accommodation Under the Americans with Disabilities Act (ADA), Employers' Practical Guide: Reasonable Accommodation During the Hiring Process, Addressing Requests for Sit/Stand Workstations, Best Practices for Addressing Requests for Ergonomic Chairs, Making a Statement About Reasonable Accommodation and Equal Opportunity, Providing Temporary or Trial Accommodation Solutions, Recertifying the Ongoing Need for Accommodation, Using Third-Party Vendors to Process Accommodation Requests. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is The interactive process can begin when the employee makes the request. The following situations and solutions are real-life examples of accommodations that were made by JAN customers. ` 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. That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. endobj This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. 0 As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. Once an accommodation has been chosen, it is time to implement the accommodation. " Its a good idea to touch base with your employee on how things are going. 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. If there is no solution, the best thing is your documentation showing that you did explore accommodation options. | 1 p.m. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? 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. First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. A large company wanted to standardize all of the accommodation requests it receives. The following list provides some guidelines.
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