This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. Accommodation options will be considered in discussions with the employee. "If there is one, go ahead and just do it." endobj Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. %%EOF NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. 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. Adobe PDF viewer is required for some of these documents. Employees can start the interactive process using any form, including verbal communication. The assistant wanted the employee to sign a blanket medical release. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. After an employee requests accommodations, the employer must take the appropriate steps. Please log in as a SHRM member before saving bookmarks. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. 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. 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. Never assume an employee is disabled. 222 0 obj <>stream 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. Never assume an employee is disabled. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. Pay careful attention to medical-related issues employees bring to your attention. "Interactive Process Checklist" any time they talk to the employee regarding these issues. A Department should consider the factors listed in Section III. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> What does antisemitic discrimination look like at work? 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. *&edtb?iB!+"M@"8hzMC|;q The following persons will be present at this meeting: [names of meeting participants]. [SHRM members-only toolkit:Accommodating Employees' Disabilities], In holding that the ADA discrimination and FMLA retaliation claims could not proceed to trial, the court noted the company's legitimate basis for its termination decisionnamely, excessive absenteeism and the well-established principle that "an employee's failure to show up for work is a legitimate reason for firing her." 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 Keep up with the story. h\ CJ if(currentUrl.indexOf("/about-shrm/pages/shrm-china.aspx") > -1) { "Written follow-up in both directions that confirms what the discussion has been. the employees disability and need for accommodation are obvious. 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. 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." }); if($('.container-footer').length > 1){ While she did not submit a formal accommodation request, and the company had concerns that she would be unable to perform certain aspects of her job while at home, it nevertheless allowed her to leave the office in the early afternoon and work from her home for the remainder of the day. No Past Exhibit Booths for Interactive Process. 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. Your session has expired. Once an accommodation has been chosen, it is time to implement the accommodation. Members can get help with HR questions via phone, chat or email. <> 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. For example, if an employee who uses a wheelchair requests that his desk be placed on blocks to elevate the desktop above the arms of the wheelchair and the employer complies, an appropriate accommodation has been requested, identified, and provided without the need for a formal process. Accommodations Beyond Job Performance = Compliance and Inclusion, Changing a Supervisor as an Accommodation under the ADA, Cognitive Impairment and the Interactive Process, Good Deeds Not Punished: Dispelling the Idea of Precedent Setting and the ADA, Out with the Old, In with the NewSupervisor, Providing Temporary Accommodation Solutions, Recognizing an Accommodation Request Under the ADA. The interactive process isnt always necessary, though. 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. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. 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', 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. III. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. ", 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. 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 Americans with Disabilities Act (ADA) requires covered employers to provide effective, reasonable accommodations for employees with disabilities. 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 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. 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. Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. The request can also come from someone other than the employee. That the supervisor didn't ask anything medical. No Remote Monthly Series Training for Interactive Process. o @ If everything is working well, she continues to check in every six months. stream + : UNIVERSITY OF CALIFORNIA, SAN DIEGO EMBED Word.Picture.6 SANTA BARBARA ( SANTA CRUZ BERKELEY ( DAVIS ( IRVINE ( LOS ANGELES ( MERCED ( RIVERSIDE ( SAN DIEGO ( SAN FRANCISCO Reasonable Accommodation Agreement Date: Dear [Mr./Ms. Assess the effectiveness of the accommodation(s) in enabling the employee to perform the essential functions of the job. One good approach is to withhold the employees name and identifying information from outside resources. endobj But this all counts as the interactive process. IV. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. } hn CJ ji.3 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." What Now? {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. temp_style.textContent = '.ms-rtestate-field > p:first-child.is-empty.d-none, .ms-rtestate-field > .fltter .is-empty.d-none, .ZWSC-cleaned.is-empty.d-none {display:block !important;}'; Select Accept to consent or Reject to decline non-essential cookies for this use. 2 0 obj The California Fair Employment and Housing Act requires employers of five or more employees to provide reasonable accommodation for individuals with a physical or mental disability to apply for jobs and to perform the essential functions of their jobs unless it would cause an undue hardship. Here at UC Berkeley, we value your growth and development throughout your career journey. You have successfully saved this page as a bookmark. 4 0 obj "Its hard to convince a jury or agency that an essential function truly is an essential function if its not in the job description, or if other employees in the role weren't performing it. Also, include a closing and a polite signature. The Equal Employment Opportunity Commission (EEOC) enforces the protections provided to employees with disabilities under the Americans with Disabilities Act (ADA). We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. x[OF0Ic{|Y"vB!8$m38t =saOE9/t4d/_u0[,_K1KY3u\p,Q";[N>p '$tB/`;I=`O@b6` {vxsA *;AXN0(/:!Npt"qD?6:u>O3G?Fu0nI hDD1qpa o=^,LT7&Q8`!m+@Y.M7o"ACP9gC0+y=8A+uvoE %}IZ"EwV@_[PZmm[8>^||'=biB@^ru.@{&a[J{h%dyplpy5g}c!@75e! This is not the case employers are free to try accommodations and stop them if they do not work. 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. 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. To request permission for specific items, click on the reuse permissions button on the page where you find the item. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. Shortly thereafter, the company terminated the plaintiff's employment after she failed to report to work due to child care issues. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. Additionally, don't use negative words as they have a bad impact. 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. They are excellent. hn CJ ) $ % A B c ) * 6 gd] F^F 8&#$$d &d N P )#P &#$$d &d N P a&#$-D(M Welcome to the newest section of our site - Talent Acquisition! Fh^F`h This is a request for a reasonable accommodation. However, unless the disability or the need for accommodation is obvious, it is the responsibility of the employee to inform the supervisor that an accommodation is needed in order to perform the essential job functions, or to receive equal benefits and privileges of employment. Unnecessary delays are a violation of the ADA. 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. In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. | 2 p.m. 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 To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". &. Trello. The most important way to monitor accommodations is to encourage ongoing communication. A good idea is to include a discussion of the interactive process as part of your ADA policy. 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. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. The EEOCs recommended starting point is to use an interactive process once a request has been made. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 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. 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. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. 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. Once accommodation options have been explored, the employer must choose what accommodation to implement. 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. 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. Ask your employees if they have any thoughts on what might help. The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. 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. Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. The request doesnt have to include any specific terminology. 2023 "You rarely see an . Learn more about your compensation, benefits and everything that goes into a Total Rewards package. 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. 1630.2(o)(3). Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. Here are some recommended steps to include in your checklist. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. The Interactive Process can begin in a number of ways. The supervisor may request that the employee provide written documentation from a licensed medical practitioner, specifying the employees functional limitations as they pertain to the job, without providing diagnostic information. However, the company offered her the option of leaving work at 4 p.m. The employee does not have to formally notify the supervisor or department in writing. n\3C[% If assistance is desired, please call the ACCES Consultant at (858) 888-8888. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. 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. 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. A federal agency recently updated its accommodation policy. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. Communication is especially important if youve provided any assistive technology or equipment. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. Thats because their request for a new chair isnt related to a medical condition. Decision-making authority: Department head or designee. Keep your message as short as possible. endstream endobj 188 0 obj <>stream For example, it is sufficient if the employer receives notice of treatment needed by an employee. The law requires that employees and employers engage in the Interactive Process. Take the employee's expressed preferences into consideration. Members may download one copy of our sample forms and templates for your personal use within your organization. If it is a written letter, include a handwritten signature. (For example, "I'm getting headaches from the glare from my computer screen. <>>> If there is no solution, the best thing is your documentation showing that you did explore accommodation options. So its important to note that your employees request doesnt have to be in writing. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. Employees last name], We have received your medical release from your doctor, [name] dated [date]. Notify supervisor if unable to report to work for any reason Supervisors Responsibilities: Ensure that employee is not directed to perform tasks that exceed restrictions recommended by treating physician. 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. This includes with or without reasonable accommodation. That there was followup, but that it stayed away from medical details. $("span.current-site").html("SHRM MENA "); Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. 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. 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. No Past Recorded Modules for Interactive Process. (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. "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 need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. After six months, she hadnt heard anything. ' ( 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 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. 3 0 obj Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. 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. e e e e e y y y 8 y * F f* h* h* h* h* h* h* - / Evaluate whether the employee can perform the job safely. ", "When implementing an accommodation, supervisors sometimes disclose medical information,"Loy said. Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations.
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