A large company wanted to standardize all of the accommodation requests it receives. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. Please purchase a SHRM membership before saving bookmarks. Ask your employees if they have any thoughts on what might help. n\3C[% Fh^F`h 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u 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 . 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. That the supervisor didn't ask anything medical. @ A B U V n o z { 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. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. 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;}'; the employees disability and need for accommodation are obvious. Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. 1 0 obj One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. Should an Accommodation Request Automatically Trigger FMLA? The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. 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. Dont prematurely end the process,"Schwarz said. Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. Please enable scripts and reload this page. 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. (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. ", 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. This includes with or without reasonable accommodation. 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 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. Please note that all such forms and policies should be reviewed by your legal . 3 0 obj 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. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. 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. Let HR Dive's free newsletter keep you informed, straight from your inbox. The EEOCs Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act provides that as a general rule, the individual with a disability who has the most knowledge about the need for reasonable accommodation must inform the employer than an accommodation is needed. The request can be made verbally or in writing. endstream endobj 189 0 obj <>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 Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. The interactive process can begin when the employee makes the request. endstream endobj 188 0 obj <>stream However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. ("I need an anti-glare screen."). If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. 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. McAfee & Taft A Professional Corporation. 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. No Past Recorded Modules for Interactive Process. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. 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. 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 request doesnt have to include any specific terminology. 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. If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. A Transfer Search may be another option. hn UVmH nH u hn jD hn U An employee submitted an accommodation request for an ergonomic chair due to a back injury. " Trello. Step 3: Get Job Descriptions in Order 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. endobj If there is no solution, the best thing is your documentation showing that you did explore accommodation options. Reasonable Accommodation - National Association of Letter Carriers AFL-CIO 3 0 obj 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 is considered an accommodation 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. &. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. Douglas Schwarz, a partner with Morgan, Lewis & Bockius LLP, said that recognizing when someone has requested an accommodation is not always an easy thing to do, especially because there's no bright-line event or statement that triggers the employers obligation to participate in the interactive process. Members may download one copy of our sample forms and templates for your personal use within your organization. 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. | 2 p.m. $(document).ready(function () { Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." That there was followup, but that it stayed away from medical details. Don't hide your interactive process requirement, rather publicize it. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. 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. In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. The important thing for employers to remember is not to ask for too much information. 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. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. 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. 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. This notice does not need to disclose the employees specific condition. The Interactive Process can begin in a number of ways. Your Accommodation Request Was Denied. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. 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. <> As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. h\ CJ 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. A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. Uncertainty from the start. 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. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." 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. The interactive process isnt always necessary, though. Friends, family, and health professionals can request accommodations on an employees behalf. endobj The following list provides some guidelines. 0 Zappos. 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. The following situations and solutions are real-life examples of accommodations that were made by JAN customers. Reviewing current vacancies within the department. Keep up with the story. <> At this step, employers should be open to new ideas and new ways of doing things. ", 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. 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. Work with your employee to understand their specific challenges or limitations. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. Once youve identified an accommodation request, its best to take action immediately. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. 18-50053 (Dec. 12, 2018). The EEOCs recommended starting point is to use an interactive process once a request has been made. 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. Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. 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. Asking for all medical records will rarely, if ever, meet this test. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. 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. ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? 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! Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. } endobj Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. } According to the EEOC, the interactive process is not always required under the ADA. "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. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. Using the Interactive Process to Reach a Reasonable Accommodation. Once the employer has identified the employees limitation that is causing a problem and has identified what that problem is, then the employer is ready to explore accommodation options. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. $('.container-footer').first().hide(); Equal Employment Opportunity Commission, For more training and information on the interactive process, see JAN's Just-In-Time Training Module ", For information on the interactive process in relation to service providers, see, No Blog Posts available for Interactive Process. Please read our Privacy Notice, Terms of Use, Cookie Notice, CCPA Notice, and Website Accessibility Policy. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. <> | 1 p.m. Employees last name], We have received your medical release from your doctor, [name] dated [date]. Once an accommodation has been chosen, it is time to implement the accommodation. Circumstances or the effectiveness of accommodations can change over time. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. hbbd```b``:"kd6di`f0^ X|9$x hH : 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. Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. 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. 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. ", 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. Make a request for an accommodation verbally, in writing, and/or using one of the above methods, to the RARC, the agency Workplace Equality Compliance Officer (WECO), a Deciding Official (typically the first line supervisor/manager), the servicing human resources office, or any agency employee connected with the job application process, as 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. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. The request can also come from someone other than the employee. III. If there is more than one option, the employer should consider the preference of the employee. 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 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.