", Often, supervisors don't recognize an accommodation request or ignore the request, according to Beth Loy, principal consultant with the Job Accommodation Network (JAN), a program funded by a contract with U.S. Department of Labor's Office of Disability Employment Policy. {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w vs_V\FG:FsZv7B,?/ iZ. It may also come as a result of administering FMLA leave or a workers compensation claim. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. *&edtb?iB!+"M@"8hzMC|;q Please log in as a SHRM member before saving bookmarks. The purpose of an accommodation is to enable the employee to perform the essential functions of the job. 7 ways to screw up the ADA's interactive process | HR Dive Members can get help with HR questions via phone, chat or email. The company did not receive information in response to this request. However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. Remember to only ask for the necessary medical information. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. A large company wanted to standardize all of the accommodation requests it receives. Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". You dont want the front-line supervisor feeling like he needs to answer this question,"Schwarz said, and "it's not realistic that every manager/supervisor will become an expert in the interactive process. 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. This includes information on the essential job functions your employee can and cant do. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. 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. " 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. The accommodation [will begin or began] on [date] and end based upon future doctor visits. 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. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. c'`WpPs%<8 I\`aC~",&,b)qo)&ZG*#TFL*#QTy`^`t"d+p[|:n.Hmb]7Dx=>J ?|wadG 1fO7,m/I?viwMkO % Knowing When to Request Medical Information, What does "Undue Hardship" mean? PDF The FEHA/ADA Interactive Process - Freeman Rehabilitation Services Employees last name], We have received your medical release from your doctor, [name] dated [date]. n\3C[% Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. 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 example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space not why. Zappos. This step is very important to the success of an accommodation. Understand how these limitations impact their essential job functions. The human resources director informed him that the company policy is to only ask for what is absolutely necessary. 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. 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. Circuit Court of Appeals decision shows. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. Finally, the employee says, "I'm really having trouble getting out of bed in the morning. 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. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. Employee's Failure to Participate in Interactive Process Dooms ADA The interactive process is a conversation between an employer and an employee to determine if the employee requires a reasonable accommodation to perform the essential functions of their job and if so, what the accommodation (s) may be. Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. 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 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. After Completing FMLA, The Employer Uses The Interactive Process And 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 " If there is no solution, the best thing is your documentation showing that you did explore accommodation options. "), That the supervisor said, "How can I help you? > g  f bjbj 4 X " ' ( 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 Employers must initiate an "interactive process" when an applicant or employee requests reasonable accommodations. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. Pay careful attention to medical-related issues employees bring to your attention. However, they may be a useful tool for both employers and employees. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. <>>> Here at UC Berkeley, we value your growth and development throughout your career journey. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. ADA Best Practices For Employers Engaging in an Interactive Process 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. You have successfully saved this page as a bookmark. 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. As part of this process, the EEOC recommends that employers: (1) Analyze the particular job involved and determine its purpose and essential functions; (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation; (3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. Welcome to the newest section of our site - Talent Acquisition! 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. endobj Employee Handbook Examples You Should Steal From - Workest 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. 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. However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. According to the EEOC, the interactive process is not always required under the ADA. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. Think of theinteractive processas collaborating with your employees to develop accommodations. 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;}'; Members may download one copy of our sample forms and templates for your personal use within your organization. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. stream The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Keep it brief. Once youve identified an accommodation request, its best to take action immediately. By using this site, you accept and agree to be bound by these terms. Communication is especially important if youve provided any assistive technology or equipment. Adobe PDF viewer is required for some of these documents. This is a request for a reasonable accommodation. 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. Since a new individual took over the ADA Coordinator position for a community college, an effectiveness check for all accommodation approvals is required. 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. The company was able to edit these forms to fit its needs. "Written follow-up in both directions that confirms what the discussion has been. The request had been sitting on one of the desks in the purchasing department. A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. 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. 222 0 obj <>stream ta SKN var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); If it is a written letter, include a handwritten signature. 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 . ", "On the communication side, one of the really useful tools is documentation," Schwarz said. But the supervisor should have enough training to know when its time to go to HR. The employee does not have to formally notify the supervisor or department in writing. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to persons with disabilities unless doing so would impose an undue hardship or pose a direct threat to the safety of the employee or others. Select Accept to consent or Reject to decline non-essential cookies for this use. 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. } Before meeting with the employee, review the employee's current job description and any available Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. 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. Also, include a closing and a polite signature. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. endobj The checklist and any notes should be maintained in a separate confidential medical file for that employee. No Past In-Person Trainings for Interactive Process. 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. Find the latest news and members-only resources that can help employers navigate in an uncertain economy. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. 1998) (when the employee "fail[s] to hold up her end of the interactive process by clarifying the extent of her medical restrictions, [the employer] cannot be held liable for failing to provide reasonable accommodations"); 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 employer can switch the marginal functions performed by these two employees. 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! 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. Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. ADA Reasonable Accommodation Interactive Process Letter And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. 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. An employee submitted an accommodation request for an ergonomic chair due to a back injury. This is the time to brainstorm and consider what might work. ", "Has that triggered the need for an interactive process? {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. If the employee is not a top performer or a malingerer,the supervisor doesn't want to engage; "thats when things go wrong," he said. HSmk0nv^- IA}(uNf:$+ifaGM0b_C These accommodations are specific to each individuals needs. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is This notice does not need to disclose the employees specific condition. 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. Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. 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. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. 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. Learn more in our Cookie Policy. %PDF-1.5 % For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. Members may download one copy of our sample forms and templates for your personal use within your organization. The person writing the email should make sure that the change in process is communicated clearly. the employees disability and need for accommodation are obvious. stream Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. Equal Employment Opportunity Commission, For more training and information on the interactive process, see JAN's Just-In-Time Training Module ", For information on the interactive process in relation to service providers, see, No Blog Posts available for Interactive Process. The interactive design is user-friendly and highly engaging. An employer's duty to initiate the 'interactive process' without a The Americans with Disabilities Act (ADA) not only prohibits discrimination based on disability, but it also requires that employers provide workers with disabilities reasonable accommodations. } This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. The interactive process will look different for everyone. endobj 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). 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. To request permission for specific items, click on the reuse permissions button on the page where you find the item. He does not link his need for the new chair with a medical condition. PDF Reasonable Accommodation - National Association of Letter Carriers AFL-CIO +R^_C%342hE0qmQSK[ x Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. "If it wont work, you can show you did all you could have done. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits.