Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. Please note that all such forms and policies should be reviewed by your legal . "The interactive process is such an important step for employers," he told HR Dive, and "its totally in the employers control to get right or mess up. Here are seven common mistakes. Your session has expired. A Department should consider the factors listed in Section III. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. The interactive process will look different for everyone. 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.. 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. 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. %%EOF 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. An employee submitted an accommodation request for an ergonomic chair due to a back injury. The court concluded that her response to the company's proposal to leave at 4 p.m. was "not the stuff of flexible [and] interactive discussions.". Following . endobj Before meeting with the employee, review the employee's current job description and any available ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. McAfee & Taft A Professional Corporation. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. "You rarely see an . " Topics covered: Employee learning, training, onboarding, mentoring, career development and more. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); That the employer has provided what was requested. Employee Handbook Examples You Should Steal From - Workest ; By using this site, you accept and agree to be bound by these terms. endobj An employer's duty to initiate the 'interactive process' without a Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. 4 0 obj endobj hn U ji.3 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. Ask your employees if they have any thoughts on what might help. This documentation may also include the medical practitioners suggestions about potential accommodations. The interactive process can begin when the employee makes the request. When the need isn't obvious, more information will be helpful when discussing accommodations. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. To cope with a paradoxical labor market, HR pros still squarely focused on recruiting may need to re-evaluate role requirements, inclusion initiatives and more. 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u 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. You have successfully saved this page as a bookmark. How to engage in the 'Interactive Process' with an employee $("span.current-site").html("SHRM MENA "); The sample Options Letter may be modified by an appointing power Keep up with the story. 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. Accommodation options will be considered in discussions with the employee. Second, the employer must also have notice of the employees desire to obtain some type of accommodation. (Supervisors should stay out of medical details as much as possible, Fram said.). A large company wanted to standardize all of the accommodation requests it receives. } hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? Learn more in our Cookie Policy. <> 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. Use JAN as needed we are free, and an outside resource. ET, Webinar After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. The accommodation [will begin or began] on [date] and end based upon future doctor visits. For example, it is sufficient if the employer receives notice of treatment needed by an employee. A Deconstructive Series for ADA Terminology, What to Include in Your ADA/Accommodation Toolkit, California Reasonable Accommodation Package, EEOC's Reasonable Accommodation, Establishing Procedures to Facilitate the Provision of, JAN Just-in-Time Module: Interactive Process, U.S. Dont assume that thecosts of providing the accommodationwill be too expensive. Keep it brief. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. 222 0 obj <>stream USE OWN DEPARTMENT LETTERHEAD SAMPLE: SEND TO EMPLOYEE WHO - California There areperksto creating a company culture that welcomes employees with disabilities. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> *&edtb?iB!+"M@"8hzMC|;q "Focus on disclosing only information that is need-to-know. The most important way to monitor accommodations is to encourage ongoing communication. 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. If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. Finally, the employee says, "I'm really having trouble getting out of bed in the morning. ' Understanding The ADA's Interactive Process - Insperity Once again, the company agreed and allowed her to work from home from March 2014 until December 2014. l&#$/ h o u x This agreement should be documented. "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. After Completing FMLA, The Employer Uses The Interactive Process And Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. 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. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. A good idea is to include a discussion of the interactive process as part of your ADA policy. 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! endstream endobj startxref 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 employee who requested the accommodation is often the best source of information about the disability and possible accommodations. The human resources director informed him that the company policy is to only ask for what is absolutely necessary. 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. These forms included medical inquiry, onboarding, trial, and other process forms. Using the Interactive Process to Reach a Reasonable Accommodation. 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. 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. 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.]. If the accommodation involves a schedule change or policy modification, then certain managers or supervisors may need to know of the change to effectively implement it. if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { 18-50053 (Dec. 12, 2018). In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. When an employee becomes unable to perform the essential, assigned duties of the currently-held position as a result of a covered disability, the Berkeley campus is committed to providing services to assist the employee. 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. 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. And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. ("I need an anti-glare screen."). Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. They are excellent. 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. ' ( 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 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? Never assume an employee is disabled. Please confirm that you want to proceed with deleting bookmark. It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. } The good news, according to David Fram,director of ADA &EEO services for the National Employment Law Institute, is there's something you can do about it. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. stream 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 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. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. 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. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. endobj stream var temp_style = document.createElement('style'); The important thing for employers to remember is not to ask for too much information. Interactive Process - AskJAN.org If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. Fh^F`h Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. The law requires that employees and employers engage in the Interactive Process. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. Step 3: Get Job Descriptions in Order Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. Please read our Privacy Notice, Terms of Use, Cookie Notice, CCPA Notice, and Website Accessibility Policy. 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 employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. In this regard, the court observed that Time Warner had "a record of granting [the plaintiff's] numerous accommodation and FMLA leave requests back to 2013, even when it was not required to do so by law. Employees who are receiving accommodations need to understand that they should let their employers know if there are changes or problems with the accommodation and who specifically to contact. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. Choose someone to ensure that the request for accommodations gets processed. "If there is one, go ahead and just do it." Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. At this step, employers should be open to new ideas and new ways of doing things. $("span.current-site").html("SHRM China "); "If it wont work, you can show you did all you could have done. Company Email Notifying of a Process Change | Edit & Forward Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. But the FMLA doesnt provide paid leave, and employers say it can be difficult to administer. 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. 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. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. It may also come as a result of administering FMLA leave or a workers compensation claim. These ideas, along with any ideas from the employee and employees medical provider, must be documented.