When a request is made, employers should first look for a quick, simple and easy solution,Fram said. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) {
We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. When the economy is unstable, employers are faced with difficult decisions around staffing, pay and benefits. %PDF-1.5
If there is more than one option, the employer should consider the preference of the employee. Time Warner Cable Texas LLC hired the plaintiff in October 2012 as a workforce analyst. You can even have a trial period whenever theres doubt that an accommodation will be a good fit. If there is no solution, the best thing is your documentation showing that you did explore accommodation options. endobj
Reasonable accommodation can include, but is not limited to, the following: Employees with disabilities may have separate rights to unpaid leave under the Federal Family and Medical Leave Act or the California Family Rights Act. A federal agency recently updated its accommodation policy. The checklist and any notes should be maintained in a separate confidential medical file for that employee. stream
This agreement should be documented. Second, the employer must also have notice of the employees desire to obtain some type of accommodation. 4 0 obj
Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. The interactive process will look different for everyone. ("I need an anti-glare screen."). 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. Shortly thereafter, the company terminated the plaintiff's employment after she failed to report to work due to child care issues. An employee submitted an accommodation request for an ergonomic chair due to a back injury. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. Take the employee's expressed preferences into consideration. Ask your employees if they have any thoughts on what might help. ' Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. ", "When implementing an accommodation, supervisors sometimes disclose medical information,"Loy said. 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 This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". 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. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. Communication is especially important if youve provided any assistive technology or equipment. 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. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? 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. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. As part of this assessment process, the ADA requires that an employer engage in a timely, good-faith and meaningful interactive discussion with the employee. Unnecessary delays are a violation of the ADA. Empower your employee to express concerns with their accommodations at any time. They are excellent. JANis a free national resource for employers looking for help with accommodations. 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. Uncertainty from the start. ", Additionally, employers sometimes request or gather too much medical information, Loy said. By using this site, you accept and agree to be bound by these terms. This documentation may also include the medical practitioners suggestions about potential accommodations. Should an Accommodation Request Automatically Trigger FMLA? First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. 4 0 obj
The employer can switch the marginal functions performed by these two employees.
|^| 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. Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. A good idea is to include a discussion of the interactive process as part of your ADA policy. It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. Remember to only ask for the necessary medical information. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. 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. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. 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. One good approach is to withhold the employees name and identifying information from outside resources. hb```TB ea8 ,2^2o-r
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|t3utWD1$1}I? There areperksto creating a company culture that welcomes employees with disabilities. 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. Employees last name],
We have received your medical release from your doctor, [name] dated [date]. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. When the need isn't obvious, more information will be helpful when discussing accommodations. For example, if an employee who recently started using a wheelchair indicates that he needs a ramp to get into the workplace, the disability and need for accommodation are obvious. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>>
Trello. ", 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.". "If it wont work, you can show you did all you could have done. 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). 0
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 employee does not have to formally notify the supervisor or department in writing. What does antisemitic discrimination look like at work? "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." No Upcoming Events for Interactive Process. 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 However, they may be a useful tool for both employers and employees. For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space not why. That there was followup, but that it stayed away from medical details. 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. Box 370, San Carlos CA 94070 Phone: 650-595-4447 ~ Fax: 866-804-0574 dfreeman@freemanrehabilitationservices.com Interactive Process Here are links to a sample interactive process letter to employees and charts. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? <>
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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. By using this site, you accept and agree to be bound by these terms. It was created to assist you while you are recovering. 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. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. So its important to note that your employees request doesnt have to be in writing. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. 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. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. The interactive process often begins when the employee makes an accommodation request. {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w
vs_V\FG:FsZv7B,?/ iZ. Another EEOC recommendation is to consider the employees preference. LinkedIn and 3rd parties use essential and non-essential cookies to provide, secure, analyze and improve our Services, and to show you relevant ads (including professional and job ads) on and off LinkedIn. 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. External resources to help identify whether accommodation is possible include: SAMPLE REQUEST FOR REASONABLE ACCOMMODATION PACKAGE: ENGLISH (PDF), SAMPLE REQUEST FOR REASONABLE ACCOMMODATION PACKAGE: SPANISH (PDF), Communication Center: 800-884-1684 (voice), 800-700-2320 (TTY) or, Department of Rehabilitation Disability Access Services, EEOCs fact sheet on small employers and reasonable accommodation, EEOCs enforcement guidance on reasonable accommodation under federal law. > g f bjbj 4 X
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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. Once accommodation options have been explored, the employer must choose what accommodation to implement. 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. 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. Work with your employee to understand their specific challenges or limitations. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. endstream
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Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. 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. Asking for all medical records will rarely, if ever, meet this test. Make use of words in such a way that . Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". The request doesnt have to include any specific terminology. Please log in as a SHRM member. ", "Document the whole thing from start to finish either you did the process or you didnt,"he said. 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! Necessary information may include documentation of the disability and need for accommodation. Circumstances or the effectiveness of accommodations can change over time. 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. endobj
The court concluded that her response to the company's proposal to leave at 4 p.m. was "not the stuff of flexible [and] interactive discussions.". The person writing the email should make sure that the change in process is communicated clearly. Keep it brief. Virtual & Washington, DC | February 26-28, 2023.
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