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Employees can start the. The interactive process can begin when the employee makes the request. The Interactive Process can begin in a number of ways. Keep up with the story. Decision-making authority: Department head or designee. The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. "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. 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. Necessary information may include documentation of the disability and need for accommodation. A federal agency recently updated its accommodation policy. 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. $(document).ready(function () { ", Sencenbaugh said that when ADA issues are intertwined with performance issues, employers should always consider how its actions will look to the employee and to a jury a year from now. If there is a termination, he said, all the cards are on the table. This is not the case employers are free to try accommodations and stop them if they do not work. Professional Pointer: Employee use of FMLA leave, particularly when the leave taken is intermittent, can be one of the more challenging leave-related situations employers face. Dont prematurely end the process,"Schwarz said. No Past Exhibit Booths for Interactive Process. xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. Essential functionsare the basic job duties that an employee must be able to perform. 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. A Transfer Search may be another option. The employer can switch the marginal functions performed by these two employees. Think of theinteractive processas collaborating with your employees to develop accommodations. Court decisions interpreting the ADA provide some general principles. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. You have successfully saved this page as a bookmark. Using the Interactive Process to Reach a Reasonable Accommodation. What does antisemitic discrimination look like at work? However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. hn UVmH nH u hn jD hn U If it is a written letter, include a handwritten signature. Once again, the company agreed and allowed her to work from home from March 2014 until December 2014. <> 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. &. 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 . 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. Notice of an employees desire for an accommodation can take a variety of forms, including notice that the employee wants to remain employed (in some capacity). For example, it is sufficient if the employer receives notice of treatment needed by an employee. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. The supervisor may request that the employee provide written documentation from a licensed medical practitioner, specifying the employees functional limitations as they pertain to the job, without providing diagnostic information. ET, Webinar This is a request for reasonable accommodation. Titled " The Zappos Culture Book ," this handbook highlights the company's dedication to workplace culture. ; In California, it is unlawful for an employer to fail to engage in a timely, good faith, interactive process. 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 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. 184 0 obj <> endobj The following situations and solutions are real-life examples of accommodations that were made by JAN customers. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 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. temp_style.textContent = '.ms-rtestate-field > p:first-child.is-empty.d-none, .ms-rtestate-field > .fltter .is-empty.d-none, .ZWSC-cleaned.is-empty.d-none {display:block !important;}'; ta SKN ("I need an anti-glare screen."). For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. 4 0 obj This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". This includes with or without reasonable accommodation. Fram said he sees the same problem. When in doubt, ask for clarification on the request and why. Employees can start the interactive process using any form, including verbal communication. But the supervisor should have enough training to know when its time to go to HR. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. 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. Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. 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. 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. 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. By using this site, you accept and agree to be bound by these terms. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> stream o @ Select Accept to consent or Reject to decline non-essential cookies for this use. 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. 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 Accommodation options will be considered in discussions with the employee. The interactive process will look different for everyone. 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. 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. 0 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. 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. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. 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. endobj 4 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! 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. An employer that grants schedule adjustments that aren't required under the Americans with Disabilities Act (ADA) may later stop allowing such changes when the employee declines to help the employer identify a reasonable accommodation, a recent 5th U.S. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. 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. Navigating the New EU Unitary Patent, EEOC targeting discriminatory use of artificial intelligence, Court upholds firing of marijuana cardholders discharged after positive weed test, Deadline nears for complying with PUMP Acts expanded protections for nursing mothers in the workplace. Keep it brief. Our focus on the People & Organization Development Team is to ensure that we are giving you the growth and development opportunities at the #1 public university in the world. Need help with a specific HR issue like coronavirus or FLSA? Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. Determine if any repair, maintenance, or replacement is necessary to any equipment. Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. $("span.current-site").html("SHRM MENA "); No Upcoming Events for Interactive Process. If there is no solution, the best thing is your documentation showing that you did explore accommodation options. This is considered an accommodation request. The company was able to edit these forms to fit its needs. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. By using this site, you accept and agree to be bound by these terms. The Interactive Process can begin in a number of ways. The Office of Diversity, Equity, Inclusion, and Belonging (DEIB) fosters community and engagement for staff, develops programs and experiences for employees to increase their racial literacy and cultural fluency, and is committed to creating a community where all employees can be their authentic selves at work everyday. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organizations culture, industry, and practices. It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. The interactive process isnt always necessary, though. Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w vs_V\FG:FsZv7B,?/ iZ. 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. JAN offers the following additional information and tips for the interactive process, starting with the accommodation request: The interactive process starts with an accommodation request from an employee with a disability so it is important for employers to be able to recognize a request. That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." 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. " $("span.current-site").html("SHRM China "); Then select the most appropriate accommodation for you and your employee. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. Please purchase a SHRM membership before saving bookmarks. Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. 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. For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space not why. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. Reviewing current vacancies within the department. 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. 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 note that all such forms and policies should be reviewed by your legal . Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. Take the employee's expressed preferences into consideration. When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. 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. ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. IV. | 2 p.m. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is |^| Circumstances or the effectiveness of accommodations can change over time. The interactive design is user-friendly and highly engaging. A large company wanted to standardize all of the accommodation requests it receives. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. ", The employees request. "You rarely see an . Members can get help with HR questions via phone, chat or email. 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. "Interactive Process Checklist" any time they talk to the employee regarding these issues. 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! %PDF-1.5 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. Copyright 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. 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. 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 employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. Since a new individual took over the ADA Coordinator position for a community college, an effectiveness check for all accommodation approvals is required. 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. Make use of positive language and try to remain positive throughout the email. 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. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. Please log in as a SHRM member before saving bookmarks. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. hn U ji.3 This includes information on the essential job functions your employee can and cant do. Employers must initiate an "interactive process" when an applicant or employee requests reasonable accommodations. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." Employees last name], We have received your medical release from your doctor, [name] dated [date]. According to the EEOC, the interactive process is not always required under the ADA. hbbd```b``:"kd6di`f0^ X|9$x hH : ", 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. <> If the employee cannot provide the necessary information, then medical documentation can be useful. endobj The most important way to monitor accommodations is to encourage ongoing communication. Asking for all medical records will rarely, if ever, meet this test. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. Welcome to the newest section of our site - Talent Acquisition! That the supervisor didn't ask anything medical. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. If everything is working well, she continues to check in every six months. An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. The request can also come from someone other than the employee. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. 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. HSmk0nv^- IA}(uNf:$+ifaGM0b_C There should be no ambiguity in the explanation of the change. Trello. McAfee & Taft A Professional Corporation. 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. 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). 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. <> Friends, family, and health professionals can request accommodations on an employees behalf. If it is an email, include an email signature with your contact information. 1 0 obj 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. Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. 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 Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. DOCUMENTING CURRENT ACCOMMODATIONS endstream endobj startxref Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. These accommodations are specific to each individuals needs. 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. Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. Let HR Dive's free newsletter keep you informed, straight from your inbox. Please read our Cookie Notice. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. Keep your message as short as possible. 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. What was the motivation, and did the employer meet its duty?, "The interactive process should be ended only after people have taken a hard look and decided theres really nothing else to say about the matter. 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.. Shortly thereafter, the company terminated the plaintiff's employment after she failed to report to work due to child care issues. endobj Step 1 - Create a policy. 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.". Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? Its a good idea to touch base with your employee on how things are going. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Adobe PDF viewer is required for some of these documents. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. <>>> That way, no one is surprised when the accommodation is revisited down the road. Here are some recommended steps to include in your checklist. + : 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. %%EOF (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. Topics covered: National employment laws, harassment, accommodations, training, and more. Employers must also act promptly to initiate this discussion. } A good idea is to include a discussion of the interactive process as part of your ADA policy. What Now? % 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. Please log in as a SHRM member. 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. On Feb. 24, 2015, the company issued the plaintiff a written warning as a result of poor attendance unrelated to FMLA-approved absences and advised that failure to improve her attendance would result in disciplinary action. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. The accommodation [will begin or began] on [date] and end based upon future doctor visits. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. (For example, "I'm getting headaches from the glare from my computer screen. 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. The human resources director informed him that the company policy is to only ask for what is absolutely necessary.