In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. 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. ", "Clarity is important," he said, "and getting things in writing adds to clarity. 222 0 obj <>stream endstream endobj startxref Choose someone to ensure that the request for accommodations gets processed. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. The employee who requested the accommodation is often the best source of information about the disability and possible 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. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. > g f bjbj 4 X " Understand how these limitations impact their essential job functions. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. Dont assume that thecosts of providing the accommodationwill be too expensive. Second, the employer must also have notice of the employees desire to obtain some type of accommodation. Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. 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. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. 184 0 obj <> endobj As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. Friends, family, and health professionals can request accommodations on an employees behalf. l&#$/ h o u x However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. That way, no one is surprised when the accommodation is revisited down the road. of Fair Employment & Housing (DFEH) expects employers to make up to three attempts, if needed, to contact the employee regarding participation in the interactive meeting. It's not a terribly complicated idea, but many employers fall short in the execution. "Often the request doesn't come until, for example, theres a performance management action thats going on." Here are some recommended steps to include in your checklist. endobj When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. While employers may have policies instructing their employees to provide written notice of the need for an accommodation, the employer cannot ignore verbal, visual or other cues. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. <> o @ 1630.2(o)(3). hbbd```b``:"kd6di`f0^ X|9$x hH : 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). Also, include a closing and a polite signature. The Interactive Process can begin in a number of ways. The employer can switch the marginal functions performed by these two employees. Once accommodation options have been explored, the employer must choose what accommodation to implement. 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 var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); 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. 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 law requires that employees and employers engage in the Interactive Process. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. 0 Once an accommodation has been chosen, it is time to implement the accommodation. The checklist and any notes should be maintained in a separate confidential medical file for that 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. {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. Need help with a specific HR issue like coronavirus or FLSA? "If there is one, go ahead and just do it." Topics covered: Employee learning, training, onboarding, mentoring, career development and more. The following persons will be present at this meeting: [names of meeting participants]. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. 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. $(document).ready(function () { Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. 2 0 obj However, they may be a useful tool for both employers and employees. [SHRM members-only toolkit:Accommodating Employees' Disabilities], In holding that the ADA discrimination and FMLA retaliation claims could not proceed to trial, the court noted the company's legitimate basis for its termination decisionnamely, excessive absenteeism and the well-established principle that "an employee's failure to show up for work is a legitimate reason for firing her." The employee does not have to formally notify the supervisor or department in writing. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. Reasonable Accommodation - National Association of Letter Carriers AFL-CIO 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. 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 initiate an interactive process when an applicant or employee requests reasonable accommodations. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. 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. McAfee & Taft A Professional Corporation. DOCUMENTING CURRENT ACCOMMODATIONS Your session has expired. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. The request doesnt have to include any specific terminology. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? &. 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. Be open to doing things a different way. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. 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. + : 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. }); if($('.container-footer').length > 1){ A good idea is to include a discussion of the interactive process as part of your ADA policy. An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. Together you can discuss the potential impact of the accommodations. Communication is especially important if youve provided any assistive technology or equipment. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. These ideas, along with any ideas from the employee and employees medical provider, must be documented. | 2 p.m. The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. Determine if any repair, maintenance, or replacement is necessary to any equipment. 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. Never assume an employee is disabled. 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. The interactive process can begin when the employee makes the request. 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. 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. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. According to the EEOC, the interactive process is not always required under the ADA. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. Fh^F`h No Upcoming Events for Interactive Process. 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. Time Warner Cable Texas LLC hired the plaintiff in October 2012 as a workforce analyst. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. Employers must also act promptly to initiate this discussion. 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. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. 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. Please purchase a SHRM membership before saving bookmarks. Empower your employee to express concerns with their accommodations at any time. 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u 1 0 obj We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. The following list provides some guidelines. <> 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. Members can get help with HR questions via phone, chat or email. So when, exactly, does an employer have adequate or sufficient notice to initiate the interactive discussion without receiving a request for accommodation from the employee? 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. Keep it brief. No Past Recorded Modules for Interactive Process. If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. 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. "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. Fram said he sees the same problem. 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. The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. 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. For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. What Now? 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. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. If an accommodation is not considered reasonable, refer to Sections IV and V below. At this step, employers should be open to new ideas and new ways of doing things. A federal agency recently updated its accommodation policy. The Equal Employment Opportunity Commission (EEOC) enforces the protections provided to employees with disabilities under the Americans with Disabilities Act (ADA). Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. Trello. Please note that all such forms and policies should be reviewed by your legal . <> In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. It is with the understanding that after each future doctor visits you will provide a medical update indicating either a release to perform the essential functions of your position or information describing updated functional limitations, so that a determination can be made regarding continuation of the temporary accommodation.
