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1630.2(o)(3). The sample policy, written by a law firm, notes that it is intended to aid employers in meeting their obligations under the Americans with Disabilities Act (ADA), as amended, and states that the accompanying sample forms are for "informational, educational, and/or training purposes only." Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. 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. var temp_style = document.createElement('style'); In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. You can update your choices at any time in your settings. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. stream Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. 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. Dont prematurely end the process,"Schwarz said. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." 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. "If an employee mentions some type of limitation or problem, the supervisor should err on the side of caution and move to talk to the employee.". 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. Also, include a closing and a polite signature. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. That way, no one is surprised when the accommodation is revisited down the road. The request doesnt have to include any specific terminology. The following persons will be present at this meeting: [names of meeting participants]. 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 While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. III. V. If an Employee Declines an Offer of Accommodation, Procedure 36: Classification of Positions, Procedure 60: Layoff and Reduction in Time from Professional and Support Staff Career Positions, Procedure 84: Accommodations for Nursing Mothers, Reasonable Accommodation and the Interactive Process, Family and Medical Leaves of Absence (FMLA/CFRA/PDL), Berkeley Campus Policy/Procedure for Medical Separation, Procedure 84: Accommodations for Nursing Mothers. When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. Assess the effectiveness of the accommodation(s) in enabling the employee to perform the essential functions of the job. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> ", "Document the whole thing from start to finish either you did the process or you didnt,"he said. 18-50053 (Dec. 12, 2018). The accommodation [will begin or began] on [date] and end based upon future doctor visits. Essential functionsare the basic job duties that an employee must be able to perform. Don't hide your interactive process requirement, rather publicize it. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. If it is an email, include an email signature with your contact information. ("I need an anti-glare screen."). 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 This area cover the performance management review program 'Achieve Together' and the Foundational Skills program. The California Fair Employment and Housing Act requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship. Please log in as a SHRM member. xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. l&#$/ h o u x ", 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. 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. ` {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. endstream endobj 189 0 obj <>stream endobj Notice of an employees desire for an accommodation can take a variety of forms, including notice that the employee wants to remain employed (in some capacity). While employers may have policies instructing their employees to provide written notice of the need for an accommodation, the employer cannot ignore verbal, visual or other cues. In some cases, an accommodation stops being effective for various reasons such as: the employees limitations change, workplace equipment changes, the job changes, the workplace itself changes, or the accommodation becomes an undue hardship for the employer. "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organizations culture, industry, and practices. Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. Evaluate whether the employee can perform the job safely. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w vs_V\FG:FsZv7B,?/ iZ. 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. <> An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? 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). The employee does not have to formally notify the supervisor or department in writing. A Transfer Search may be another option. If a Department Decides that the Proposed Accommodation(s) is Unreasonable. The Office of Diversity, Equity, Inclusion, and Belonging (DEIB) fosters community and engagement for staff, develops programs and experiences for employees to increase their racial literacy and cultural fluency, and is committed to creating a community where all employees can be their authentic selves at work everyday. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. Before meeting with the employee, review the employee's current job description and any available 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 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. Your Accommodation Request Was Denied. Trello. process will be maintained in your medical file, which is separate from your personnel file. What Now? Members can get help with HR questions via phone, chat or email. the employees disability and need for accommodation are obvious. The following list provides some guidelines. 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. The original accommodation was a "transitional accommodation," that is it was intended for a specifically defined purpose and time period has elapsed; The employee indicates that a new accommodation may be necessary; or. hn U ji.3 Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. ", "Has that triggered the need for an interactive process? The important thing for employers to remember is not to ask for too much information. These forms included medical inquiry, onboarding, trial, and other process forms. 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. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. Circumstances or the effectiveness of accommodations can change over time. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. No Past In-Person Trainings for Interactive Process. To request permission for specific items, click on the reuse permissions button on the page where you find the item. If there is more than one option, the employer should consider the preference of the employee. 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. Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. The interactive process often begins when the employee makes an accommodation request. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. But the supervisor should have enough training to know when its time to go to HR. Your session has expired. 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. 184 0 obj <> endobj Here at UC Berkeley, we value your growth and development throughout your career journey. A JAN consultant explained the interactive process, that the employee's disclosure is a request for accommodation, and shared JAN's Sample Reasonable Accommodation Request Form for Employers to provide to the employee, in order to clarify and document her accommodation needs. Thats because their request for a new chair isnt related to a medical condition. 4 Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. Please note that all such forms and policies should be reviewed by your legal . SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. That process requires "bilateral cooperation and communication," and requires both parties to engage in that process "in good faith." endobj Once again, the company agreed and allowed her to work from home from March 2014 until December 2014. } hVnF}LwYIn]m2Y$gnVUmP;gJ+Jh1LN[Vx0;(EfxTB-[e MJ r !w2e!CJVF4""5\IexNVr7Zr':A] ;90Zj5RlQJu9MUJrZ?fi%Pz66 ~E>yQ%^4mv2TP4& ^>r9yHk*@bM45Z]{Vx\i#sL#~wTGX*Wd9ElUozj(F$Y~(*L8rp!o_TMYe**5//Z"s5WMo*tpvjgOnaH6>Ia=YLEUp}C|X3rbartqs\A:7rg7J{|Ar#fQ}'>MS *PbX6b=*y/~'JOr!hgT.t-k]%~Ma!ED]J\Q68xE.~2TY$?G!2HSD According to the EEOC, the interactive process is not always required under the ADA. By using this site, you accept and agree to be bound by these terms. 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! The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. A Transfer Search, if appropriate, is a continuation of the Interactive Process. Please log in as a SHRM member before saving bookmarks. 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. $(document).ready(function () { 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. 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.]. No Past Recorded Modules for Interactive Process. It may also come as a result of administering FMLA leave or a workers compensation claim. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. 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. ADA regulations provide that in order to determine an appropriate reasonable accommodation, it may be necessary for the employer to initiate an informal, interactive process with the individual with a disability in need of the accommodation. 29 C.F.R. There areperksto creating a company culture that welcomes employees with disabilities. Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." Reasonable Accommodation - National Association of Letter Carriers AFL-CIO This is a request for a reasonable accommodation. An important step in the performance review process is choosing the standard for the evaluation. However, they may be a useful tool for both employers and employees. According to the EEOC, an individual may use "plain English" and need not mention the ADA or use the phrase "reasonable accommodation" when requesting an accommodation. Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. 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. A Department should consider the factors listed in Section III. All rights reserved. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. After six months, she hadnt heard anything. 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. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. Step 1 - Create a policy. Be open to doing things a different way. Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. The person writing the email should make sure that the change in process is communicated clearly. Court decisions interpreting the ADA provide some general principles. The process requires an individualized assessment of both the job and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation. c'`WpPs%<8 I\`aC~",&,b)qo)&ZG*#TFL*#QTy`^`t"d+p[|:n.Hmb]7Dx=>J ?|wadG 1fO7,m/I?viwMkO % Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." 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. No Remote Monthly Series Training for Interactive Process. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. Other options, such as a leave of absence or reduced schedule, exist and should be evaluated in light of what is permitted under policy and contract. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. The EEOC (Reasonable Accommodation and Undue Hardship (EEOC Guidance)provides the following examples: Example A: An employee tells her supervisor, "I'm having trouble getting to work at my scheduled starting time because of medical treatments I'm undergoing." 2 0 obj It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. No Past Exhibit Booths for Interactive Process. If an accommodation is not considered reasonable, refer to Sections IV and V below. hn UVmH nH u hn jD hn U Ask your employees if they have any thoughts on what might help. JANis a free national resource for employers looking for help with accommodations. Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. DOCUMENTING CURRENT ACCOMMODATIONS %%EOF If a disability precludes an employee from performing one or more essential job functions, the Department and employee, in consultation with Vocational Rehabilitation, Employee Relations, and other offices as necessary, should begin the Interactive Process. 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. The company did not receive information in response to this request. 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. They are excellent. 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. The most important way to monitor accommodations is to encourage ongoing communication. The purpose of an accommodation is to enable the employee to perform the essential functions of the job. } n\3C[% Learn more about your compensation, benefits and everything that goes into a Total Rewards package. A good idea is to include a discussion of the interactive process as part of your ADA policy. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. 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. 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. Employees can start the. Any extension of this agreement beyond this will be decided on a case-by-case basis and will be dependent upon additional information from your doctor and upon the needs of the department at that time. Please read our Cookie Notice. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. <> A federal agency recently updated its accommodation policy. The request can also come from someone other than the employee. An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. A human resources assistant was working with an electrician who needed accommodations related to seizures. Members may download one copy of our sample forms and templates for your personal use within your organization. Reviewing current vacancies within the department. (4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer. That the employer has provided what was requested. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 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. 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. Determine if any repair, maintenance, or replacement is necessary to any equipment. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA.