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Accommodation and Compliance: Interactive Process, EEOC (Reasonable Accommodation and Undue Hardship (EEOC Guidance), JAN's Effective Accommodation Practice Series: Interactive Process and Service Providers, Employers' Practical Guide to Reasonable Accommodation Under the Americans with Disabilities Act (ADA), Employers' Practical Guide: Reasonable Accommodation During the Hiring Process, Addressing Requests for Sit/Stand Workstations, Best Practices for Addressing Requests for Ergonomic Chairs, Making a Statement About Reasonable Accommodation and Equal Opportunity, Providing Temporary or Trial Accommodation Solutions, Recertifying the Ongoing Need for Accommodation, Using Third-Party Vendors to Process Accommodation Requests. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . Please read our Privacy Notice, Terms of Use, Cookie Notice, CCPA Notice, and Website Accessibility Policy. ' ( 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 ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. 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. Please note that all such forms and policies should be reviewed by your legal . The checklist and any notes should be maintained in a separate confidential medical file for that employee. Choose someone to ensure that the request for accommodations gets processed. Never assume an employee is disabled. Ask your employees if they have any thoughts on what might help. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. 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. 4 0 obj 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. hbbd```b``:"kd6di`f0^ X|9$x hH : 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 sample Options Letter may be modified by an appointing power 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. 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. (Marginal functionsare responsibilities that, once altered or removed, dont change the primary purpose of the job.) This is considered an accommodation request. 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. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. %PDF-1.5 That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. The request can also come from someone other than the employee. If it is a written letter, include a handwritten signature. 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. A large company wanted to standardize all of the accommodation requests it receives. Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. Employees can start the interactive process using any form, including verbal communication. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); JANis a free national resource for employers looking for help with accommodations. 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. The law has helped hundreds of millions of workers in its relatively short history. 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. <> McAfee & Taft A Professional Corporation. If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? 3 0 obj Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. 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 " This includes information on the essential job functions your employee can and cant do. 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. endstream endobj 188 0 obj <>stream According to the EEOC, the interactive process is not always required under the ADA. Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. 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. (For example, "I'm getting headaches from the glare from my computer screen. II. Employees last name], We have received your medical release from your doctor, [name] dated [date]. Fh^F`h hn UVmH nH u hn jD hn U That way, no one is surprised when the accommodation is revisited down the road. Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. 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. 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 A federal agency recently updated its accommodation policy. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. $("span.current-site").html("SHRM China "); 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. Work with your employee to understand their specific challenges or limitations. 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. c'`WpPs%<8 I\`aC~",&,b)qo)&ZG*#TFL*#QTy`^`t"d+p[|:n.Hmb]7Dx=>J ?|wadG 1fO7,m/I?viwMkO % Accommodation options will be considered in discussions with the employee. Also, include a closing and a polite signature. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. 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 . 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. Using the Interactive Process to Reach a Reasonable Accommodation. However, they may be a useful tool for both employers and employees. 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. <> There should be no ambiguity in the explanation of the change. 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. 1630.2(o)(3). <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> Learn more about your compensation, benefits and everything that goes into a Total Rewards package. The procedures apply for employees covered by the Americans with Disabilities Act (ADA), The California Fair Employment and Housing Act and/or Sections 503/504 of the 1973 Rehabilitation Act. } Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. 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. The interactive process often begins when the employee makes an accommodation request. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). "If it wont work, you can show you did all you could have done. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. %%EOF Another EEOC recommendation is to consider the employees preference. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. 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. 184 0 obj <> endobj The purpose of an accommodation is to enable the employee to perform the essential functions of the job. 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. Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. The campus will explore reasonable accommodation options when an employee requests accommodation, or there is evidence that an employee may need accommodation due to a covered disability. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. 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. 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. If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. 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. A good idea is to include a discussion of the interactive process as part of your ADA policy. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. 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. At this step, employers should be open to new ideas and new ways of doing things. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. Use JAN as needed we are free, and an outside resource. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. Employers must also act promptly to initiate this discussion. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses.