IV. 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. "Written follow-up in both directions that confirms what the discussion has been. This is considered an accommodation request. Keep it brief. 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. (Supervisors should stay out of medical details as much as possible, Fram said.). 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. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. Please log in as a SHRM member. The employee does not have to formally notify the supervisor or department in writing. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. 2 0 obj Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is This agreement should be documented. 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. Don't hide your interactive process requirement, rather publicize it. 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. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. ` var temp_style = document.createElement('style'); ", Loy agreed that training for front-line supervisors is crucial: Not on the entire ADA," however:"focus on how to recognize when an employee is making an accommodation request.". Learn more about your compensation, benefits and everything that goes into a Total Rewards package. endobj The ability of employers and their managerial staff to recognize requests is important. Reasonable Accommodation - National Association of Letter Carriers AFL-CIO 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. If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. 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. (Marginal functionsare responsibilities that, once altered or removed, dont change the primary purpose of the job.) The law requires that employees and employers engage in the Interactive Process. The Americans with Disabilities Act (ADA) requires covered employers to provide effective, reasonable accommodations for employees with disabilities. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. 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. %%EOF Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. Zappos. ", The employees request. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. 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. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. 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. "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.". h\ CJ For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space not why. &. A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. Essential functionsare the basic job duties that an employee must be able to perform. [See. 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. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. 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. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. Circumstances or the effectiveness of accommodations can change over time. ", "When implementing an accommodation, supervisors sometimes disclose medical information,"Loy said. The company was able to edit these forms to fit its needs. A Transfer Search is a process that may be available to employees who cannot perform the essential functions of their own position for an extended period of time, but are able to work in other jobs. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. Once accommodation options have been explored, the employer must choose what accommodation to implement. 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. 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. %PDF-1.5 accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. HSmk0nv^- IA}(uNf:$+ifaGM0b_C $("span.current-site").html("SHRM China "); McAfee & Taft A Professional Corporation. These accommodations are specific to each individuals needs. 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! 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 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. 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. 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. endstream endobj 189 0 obj <>stream The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. These ideas, along with any ideas from the employee and employees medical provider, must be documented. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. However, the company offered her the option of leaving work at 4 p.m. 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 there is no solution, the best thing is your documentation showing that you did explore accommodation options. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. For example, it is sufficient if the employer receives notice of treatment needed by an employee. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. Featuring Executive Search, our new arm of recruiting just for our clients at UC Berkeley. The person writing the email should make sure that the change in process is communicated clearly. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. The assistant wanted the employee to sign a blanket medical release. Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. 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. Additionally, don't use negative words as they have a bad impact. A federal agency recently updated its accommodation policy. 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.. Use JAN as needed we are free, and an outside resource. An important step in the performance review process is choosing the standard for the evaluation.

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