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. Shortly thereafter, the plaintiff asked her supervisor for a temporary modification to her work schedule that would allow her to leave the office early to avoid panic attacks brought on by stress associated with heavy traffic. If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. 3 0 obj The interactive process can begin when the employee makes the request. This includes with or without reasonable accommodation. 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. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. ("I need an anti-glare screen."). 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." "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. The accommodation [will begin or began] on [date] and end based upon future doctor visits. In order for the practitioner to provide a knowledgeable recommendation, the job description with the essential assigned duties annotated and a PEM form for the job should be provided to the employee to give to her/his practitioner. %PDF-1.5 Finally, the employee says, "I'm really having trouble getting out of bed in the morning. process will be maintained in your medical file, which is separate from your personnel file. The EEOC recommends that you analyze the job, its purpose, and its essential functions. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough. 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. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. 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. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. "If there is one, go ahead and just do it." 184 0 obj <> endobj A good idea is to include a discussion of the interactive process as part of your ADA policy. ", 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. 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. After an employee requests accommodations, the employer must take the appropriate steps. Accommodation options will be considered in discussions with the employee. Please purchase a SHRM membership before saving bookmarks. Once youve identified an accommodation request, its best to take action immediately. endstream endobj 189 0 obj <>stream This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. l&#$/ h o u x 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. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. 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. The law does not require the use of these or any other forms to make a request for a reasonable accommodation or to engage in an effective, good faith interactive process. stream @ A B U V n o z { 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. +R^_C%342hE0qmQSK[ x But the supervisor should have enough training to know when its time to go to HR. In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. Then select the most appropriate accommodation for you and your employee. The Equal Employment Opportunity Commission (EEOC) enforces the protections provided to employees with disabilities under the Americans with Disabilities Act (ADA). Trello. Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. 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. No Past Recorded Modules for Interactive Process. Select Accept to consent or Reject to decline non-essential cookies for this use. The employee who requested the accommodation is often the best source of information about the disability and possible accommodations. The request doesnt have to include any specific terminology. The following list provides some guidelines. Evaluate whether the employee can perform the job safely. 4 0 obj 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. It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. You can update your choices at any time in your settings. Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. 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. 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', 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. Please log in as a SHRM member before saving bookmarks. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." ", 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. Unnecessary delays are a violation of the ADA. "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.". 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. Understand how these limitations impact their essential job functions. var currentUrl = window.location.href.toLowerCase(); 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. var temp_style = document.createElement('style'); 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. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. h\ 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. 1 0 obj If an accommodation is not considered reasonable, refer to Sections IV and V below. Assess the effectiveness of the accommodation(s) in enabling the employee to perform the essential functions of the job. The interactive process often begins when the employee makes an accommodation request. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. Welcome to the newest section of our site - Talent Acquisition! 0 All rights reserved. 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. hn CJ ji.3 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 " n\3C[% stream A Department should consider the factors listed in Section III. 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. JAN offers the following additional information and tips for the interactive process, starting with the accommodation request: The interactive process starts with an accommodation request from an employee with a disability so it is important for employers to be able to recognize a request. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. Make use of words in such a way that . 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. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. If assistance is desired, please call the ACCES Consultant at (858) 888-8888. Need help with a specific HR issue like coronavirus or FLSA? Circuit Court of Appeals decision shows. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. Remember to only ask for the necessary medical information. <> <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 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. endobj A Deconstructive Series for ADA Terminology, What to Include in Your ADA/Accommodation Toolkit, California Reasonable Accommodation Package, EEOC's Reasonable Accommodation, Establishing Procedures to Facilitate the Provision of, JAN Just-in-Time Module: Interactive Process, U.S. "Written follow-up in both directions that confirms what the discussion has been. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. If the need to accommodate is obvious, an employer cannot simply wait for an employee to expressly request an accommodation. These ideas, along with any ideas from the employee and employees medical provider, must be documented. Learn more about your compensation, benefits and everything that goes into a Total Rewards package. "Focus on disclosing only information that is need-to-know. The good news, according to David Fram,director of ADA &EEO services for the National Employment Law Institute, is there's something you can do about it.
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