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Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. Assess the effectiveness of the accommodation(s) in enabling the employee to perform the essential functions of the job. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. 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. When in doubt, ask for clarification on the request and why. 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. 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 Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. Keep it brief. 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. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. Accommodation options will be considered in discussions with the employee. Following . Friends, family, and health professionals can request accommodations on an employees behalf. e e e e e y y y 8 y * F f* h* h* h* h* h* h* - / hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? It is understood that these are temporary arrangements designed to allow UCSD employees to work while recovering from illness or injury, and do not represent a permanent change of duties or responsibilities. x[OF0Ic{|Y"vB!8$m38t =saOE9/t4d/_u0[,_K1KY3u\p,Q";[N>p '$tB/`;I=`O@b6` {vxsA *;AXN0(/:!Npt"qD?6:u>O3G?Fu0nI hDD1qpa o=^,LT7&Q8`!m+@Y.M7o"ACP9gC0+y=8A+uvoE %}IZ"EwV@_[PZmm[8>^||'=biB@^ru.@{&a[J{h%dyplpy5g}c!@75e! Welcome to the newest section of our site - Talent Acquisition! The interactive process isnt always necessary, though. However, unless the disability or the need for accommodation is obvious, it is the responsibility of the employee to inform the supervisor that an accommodation is needed in order to perform the essential job functions, or to receive equal benefits and privileges of employment. Never assume an employee is disabled. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. Keep up with the story. <> Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w vs_V\FG:FsZv7B,?/ iZ. Whenever a supervisor decides not to grant an employee's request for assistance (even when the assistance has not been identified as a request for accommodation of a disability), the best practice is to provide the employee with the campus policies/procedures pertinent to accommodation of employees with disabilities. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. This process is initiated either by: The employee's written or verbal request for assistance, or. Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. 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. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. 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 employers, the hard part often is knowing when to kick off the process according to Adam Sencenbaugh, a partner at Haynes and Boone, LLP. The interactive process can begin when the employee makes the request. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. An employee's request for Family and Medical Leave Act (FMLA) time off automatically triggers an employer's Americans with Disabilities Act (ADA) obligations, even absent a specific request for . Before meeting with the employee, review the employee's current job description and any available In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. 3 0 obj Make use of positive language and try to remain positive throughout the email. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. endstream endobj startxref "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." 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. Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." When expanded it provides a list of search options that will switch the search inputs to match the current selection. Keep your message as short as possible. 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. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. $('.container-footer').first().hide(); 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. (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. Uncertainty from the start. A federal agency recently updated its accommodation policy. 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. endstream endobj 189 0 obj <>stream Be open to doing things a different way. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Its a good idea to touch base with your employee on how things are going. 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. Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". 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. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. IV. <> ", "Has that triggered the need for an interactive process? 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). Employees can start the interactive process using any form, including verbal communication. <> 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. Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. But this all counts as the interactive process. 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. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. Empower your employee to express concerns with their accommodations at any time. The person writing the email should make sure that the change in process is communicated clearly. Also, include a closing and a polite signature. Circuit Court of Appeals decision shows. Zappos. The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. %PDF-1.5 % hn UVmH nH u hn jD hn U 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. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. "You rarely see an . JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). Communication is especially important if youve provided any assistive technology or equipment. The assistant wanted the employee to sign a blanket medical release. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. These forms included medical inquiry, onboarding, trial, and other process forms. As stated by the Third Circuit Court of Appeals in Taylor v. "Its hard to convince a jury or agency that an essential function truly is an essential function if its not in the job description, or if other employees in the role weren't performing it. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. Step 3: Get Job Descriptions in Order Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRMs permission. 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LinkedIn and 3rd parties use essential and non-essential cookies to provide, secure, analyze and improve our Services, and to show you relevant ads (including professional and job ads) on and off LinkedIn. Time Warner Cable Texas LLC hired the plaintiff in October 2012 as a workforce analyst. A human resources assistant was working with an electrician who needed accommodations related to seizures. "Interactive Process Checklist" any time they talk to the employee regarding these issues. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. If the employee is not a top performer or a malingerer,the supervisor doesn't want to engage; "thats when things go wrong," he said. If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. This is a request for reasonable accommodation. The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. The employee who requested the accommodation is often the best source of information about the disability and possible accommodations. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. Consistent with departmental and campus practices, the supervisor may agree to an accommodation for essential functions, and to accommodation for, or elimination of, non-essential functions. The interactive design is user-friendly and highly engaging. "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. 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. Topics covered: National employment laws, harassment, accommodations, training, and more. 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. var temp_style = document.createElement('style'); Your session has expired. Employers must initiate an "interactive process" when an applicant or employee requests reasonable accommodations. %%EOF They are excellent. Please enable scripts and reload this page. III. 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! The request doesnt have to include any specific terminology. 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. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); 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. It's not a terribly complicated idea, but many employers fall short in the execution. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. If the employee cannot provide the necessary information, then medical documentation can be useful. process will be maintained in your medical file, which is separate from your personnel file. 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." For example, it is sufficient if the employer receives notice of treatment needed by an employee. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. 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. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." "Focus on disclosing only information that is need-to-know. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. 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. This includes information on the essential job functions your employee can and cant do. One good approach is to withhold the employees name and identifying information from outside resources. Employees last name], We have received your medical release from your doctor, [name] dated [date]. But the supervisor should have enough training to know when its time to go to HR. If there is more than one option, the employer should consider the preference of the employee. Understand how these limitations impact their essential job functions. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. 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 c'`WpPs%<8 I\`aC~",&,b)qo)&ZG*#TFL*#QTy`^`t"d+p[|:n.Hmb]7Dx=>J ?|wadG 1fO7,m/I?viwMkO % Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. Any extension of this agreement beyond this will be decided on a case-by-case basis and will be dependent upon additional information from your doctor and upon the needs of the department at that time. Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. 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. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. Then select the most appropriate accommodation for you and your employee. To request permission for specific items, click on the reuse permissions button on the page where you find the item. Here are some recommended steps to include in your checklist. %PDF-1.5 This includes with or without reasonable accommodation. "), That the supervisor said, "How can I help you? That the employer has provided what was requested. 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. Once youve identified an accommodation request, its best to take action immediately. % It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. Notify supervisor if unable to report to work for any reason Supervisors Responsibilities: Ensure that employee is not directed to perform tasks that exceed restrictions recommended by treating physician. You can even have a trial period whenever theres doubt that an accommodation will be a good fit. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." | 2 p.m. 4 Never assume an employee is disabled. Additionally, don't use negative words as they have a bad impact. %PDF-1.5 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. Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. If it is decided that a proposed accommodation is unreasonable or presents an undue hardship, the Department should re-initiate the Interactive Process with the employee to try and arrive at a mutually agreeable alternative to the originally proposed accommodation. 1630.2(o)(3). The company did not receive information in response to this request. z0#D0v[{qL*Aoco; tY-bGG[!8^N^1swy QZU^BL@z6xWbt aQ"(4^+(4`V@91&jE,_C5lRqk_h:f.tlZr.9gO(t"w#\O #*^]]7j]" :It)Rf!n', ", The employees request. So its important to note that your employees request doesnt have to be in writing. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. "You rarely see an employee who knows about the ADA and asks for a reasonable accommodation," he told HR Dive;"You need to start the process even if they havent used any magic words. h* e N N N h* e e }* N e e f* N f* r ) T * y d b) R* * 0 * p) 0 v p 0 * 0 e * D 8 t h* h* * N N N N 0 " Learn more in our Cookie Policy. Please confirm that you want to proceed with deleting bookmark. (Supervisors should stay out of medical details as much as possible, Fram said.). This agreement should be documented. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. 222 0 obj <>stream You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. One thing employers might want to do when testing accommodations is to make a written agreement with the employee that the accommodation is being tested, how long the test will be, and what will happen if the accommodation does not work. xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. There should be no ambiguity in the explanation of the change. endobj Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. 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 following list provides some guidelines. "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. The law has helped hundreds of millions of workers in its relatively short history. Once accommodation options have been explored, the employer must choose what accommodation to implement. The law requires that employees and employers engage in the Interactive Process. If a Department Decides that the Proposed Accommodation(s) is Unreasonable. 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. +R^_C%342hE0qmQSK[ x Decision-making authority: Department head or designee. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. This is a request for a reasonable accommodation. Need help with a specific HR issue like coronavirus or FLSA? |^| Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. 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. He does not link his need for the new chair with a medical condition. 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. Essential functionsare the basic job duties that an employee must be able to perform.