The person writing the email should make sure that the change in process is communicated clearly. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. 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.". 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. This documentation may also include the medical practitioners suggestions about potential accommodations. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. The interactive process isnt always necessary, though. 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. Knowing When to Request Medical Information, What does "Undue Hardship" mean? 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. 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. Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. Be open to doing things a different way. "Written follow-up in both directions that confirms what the discussion has been. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. How to Create a Robust Reasonable Accommodation Process - SHRM 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. Pay careful attention to medical-related issues employees bring to your attention. This is a request for a reasonable accommodation. If a Department Decides that the Proposed Accommodation(s) is Unreasonable. DOCUMENTING CURRENT ACCOMMODATIONS A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. 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? Then select the most appropriate accommodation for you and your employee. PDF Sample Options Letter for Resolving Medical/Employment Issues - California 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. "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. After an employee requests accommodations, the employer must take the appropriate steps. If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. DOC JAN - Job Accommodation Network Additionally, don't use negative words as they have a bad impact. ", Additionally, employers sometimes request or gather too much medical information, Loy said. Unnecessary delays are a violation of the ADA. Federal Appeals Court Emphasizes Importance of Interactive Process in 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. 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. 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 Interactive Process - AskJAN.org 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. 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. Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. Once again, the company agreed and allowed her to work from home from March 2014 until December 2014. Also, include a closing and a polite signature. <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). If assistance is desired, please call the ACCES Consultant at (858) 888-8888. @ A B U V n o z { Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. Use JAN as needed we are free, and an outside resource. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. 7 ways to screw up the ADA's interactive process | HR Dive Remember to only ask for the necessary medical information. 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. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. + : 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. Please log in as a SHRM member. No Upcoming Events for Interactive Process. Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. 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. $(document).ready(function () { 0 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. endobj Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. Employers that follow the technical requirements of the statute, demonstrate flexibility and document their compliance put themselves in the best position in the event of litigation. Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. <>>> 1. However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. 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. Reviewing current vacancies within the department. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. 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.]. Using the Interactive Process to Reach a Reasonable Accommodation. (Supervisors should stay out of medical details as much as possible, Fram said.). ' ( 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 DOC Reasonable Accommodation Agreement - sample letter This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". All rights reserved. Should an Accommodation Request Automatically Trigger FMLA? Never assume an employee is disabled. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. The interactive process can begin when the employee makes the request. The most important way to monitor accommodations is to encourage ongoing communication. 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. 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. This step is very important to the success of an accommodation. Reasonable accommodation can include, but is not limited to, the following: Employees with disabilities may have separate rights to unpaid leave under the Federal Family and Medical Leave Act or the California Family Rights Act. Please log in as a SHRM member before saving bookmarks. 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. Court decisions interpreting the ADA provide some general principles. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. No Past Exhibit Booths for Interactive Process. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. 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. In response, again citing anxiety and panic attacks resulting from heavy traffic, the plaintiff submitted an accommodation request for a modified in-office schedule, from 7 a.m. to 2 p.m., working from home in the afternoons. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. 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.. }); if($('.container-footer').length > 1){ PDF The FEHA/ADA Interactive Process - Freeman Rehabilitation Services Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. Your Accommodation Request Was Denied. 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. The request had been sitting on one of the desks in the purchasing department. $("span.current-site").html("SHRM China "); Zappos. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. Fram said he sees the same problem. 18-50053 (Dec. 12, 2018). After complaining to her supervisor, the supervisor talked with HR. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 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;}'; Read more When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. As stated by the Third Circuit Court of Appeals in Taylor v. 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 " 3 0 obj Finally, the employee says, "I'm really having trouble getting out of bed in the morning. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. There should be no ambiguity in the explanation of the change. ", "Clarity is important," he said, "and getting things in writing adds to clarity. %PDF-1.5 In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. This button displays the currently selected search type. 1630.2(o)(3). When the need isn't obvious, more information will be helpful when discussing accommodations. 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. Since a new individual took over the ADA Coordinator position for a community college, an effectiveness check for all accommodation approvals is required. McAfee & Taft A Professional Corporation. Members may download one copy of our sample forms and templates for your personal use within your organization. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. ", "When implementing an accommodation, supervisors sometimes disclose medical information,"Loy said. If it is a written letter, include a handwritten signature. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. If there is more than one option, the employer should consider the preference of the employee. There areperksto creating a company culture that welcomes employees with disabilities. 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. 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. The Interactive Process can begin in a number of ways. The employee who requested the accommodation is often the best source of information about the disability and possible accommodations. No Past Recorded Modules for Interactive Process. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. 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. endobj Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. ("I need an anti-glare screen."). One good approach is to withhold the employees name and identifying information from outside resources. 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. Following . If an accommodation is not considered reasonable, refer to Sections IV and V below. But the FMLA doesnt provide paid leave, and employers say it can be difficult to administer. 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. 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. Virtual & Washington, DC | February 26-28, 2023. According to the EEOC, the interactive process is not always required under the ADA. Communication is especially important if youve provided any assistive technology or equipment. "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." But failure to engage in the interactive process may prevent an employee from receiving a reasonable accommodation, and may therefore result in liability under the ADA. This includes information on the essential job functions your employee can and cant do. 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. 2 0 obj var temp_style = document.createElement('style'); You have successfully saved this page as a bookmark. 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. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. Evaluate whether the employee can perform the job safely. These forms included medical inquiry, onboarding, trial, and other process forms. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. 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). That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." Don't hide your interactive process requirement, rather publicize it. Other resources, such as the Job Accommodations Network (JAN), or your employee's medical provider, can give suggestions. Adobe PDF viewer is required for some of these documents. | 1 p.m. Step 3: Get Job Descriptions in Order Employee Letter and Email Examples - The Balance Careers $('.container-footer').first().hide(); endobj % The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk.
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