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. Members can get help with HR questions via phone, chat or email. Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. ", 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. Keep up with the story. After Completing FMLA, The Employer Uses The Interactive Process And Finally, the employee says, "I'm really having trouble getting out of bed in the morning. EEOC Informal Discussion Letter Make use of words in such a way that . The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. By using this site, you accept and agree to be bound by these terms. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. The Interactive Process can begin in a number of ways. To request permission for specific items, click on the reuse permissions button on the page where you find the item. 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. The ability of employers and their managerial staff to recognize requests is important. In June 2013, the plaintiff made an accommodation request under the ADA to lie down while at work due to dizzy spells related to her pregnancy. 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 " endobj 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. Also, include a closing and a polite signature. Once youve identified an accommodation request, its best to take action immediately. Together you can discuss the potential impact of the accommodations. 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. } hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? And if still more ideas are needed, then the employer should consult with outside resources such as JAN, vocational rehabilitation, rehabilitation engineers, and disability-related organizations. Our focus on the People & Organization Development Team is to ensure that we are giving you the growth and development opportunities at the #1 public university in the world. 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. The law has helped hundreds of millions of workers in its relatively short history. ("I need an anti-glare screen."). e e e e e y y y 8 y * F f* h* h* h* h* h* h* - / "Often the request doesn't come until, for example, theres a performance management action thats going on." Don't hide your interactive process requirement, rather publicize it. So when, exactly, does an employer have adequate or sufficient notice to initiate the interactive discussion without receiving a request for accommodation from the employee? endstream endobj 189 0 obj <>stream Step 1 - Create a policy. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. <> The following list provides some guidelines. These forms included medical inquiry, onboarding, trial, and other process forms. @ A B U V n o z { "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. 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.]. The company was able to edit these forms to fit its needs. 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. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." No Upcoming Events for Interactive Process. One good approach is to withhold the employees name and identifying information from outside resources. For example, if an employee has a couple of doctors appointments during the next few weeks and needs to come in a little late, let the person do it. ta SKN endobj 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 ", "Has that triggered the need for an interactive process? var currentUrl = window.location.href.toLowerCase(); An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. Communication is especially important if youve provided any assistive technology or equipment. 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. 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. 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. 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 This documentation may also include the medical practitioners suggestions about potential accommodations. hn U ji.3 You have successfully saved this page as a bookmark. 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. [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." endobj Before meeting with the employee, review the employee's current job description and any available Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. 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;}'; After Completing FMLA, The Employer Uses The Interactive Process And Lawfully Terminated Its Employee The crossroad between the protections of the FMLA and the ADA is somewhat difficult to navigate. Fh^F`h After six months, she hadnt heard anything. 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. If there is more than one option, the employer should consider the preference of the employee. n\3C[% If everything is working well, she continues to check in every six months. When the need isn't obvious, more information will be helpful when discussing accommodations. Please read our Privacy Notice, Terms of Use, Cookie Notice, CCPA Notice, and Website Accessibility Policy. 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. 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. hn CJ ji.3 If there is no solution, the best thing is your documentation showing that you did explore accommodation options. stream Sample Forms - AskJAN.org Once again, the company agreed and allowed her to work from home from March 2014 until December 2014. If the employee cannot provide the necessary information, then medical documentation can be useful. 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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. 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. Whenever a supervisor decides not to grant an employee's request for assistance (even when the assistance has not been identified as a request for accommodation of a disability), the best practice is to provide the employee with the campus policies/procedures pertinent to accommodation of employees with disabilities. | 1 p.m. That the employer has provided what was requested. 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 cope with a paradoxical labor market, HR pros still squarely focused on recruiting may need to re-evaluate role requirements, inclusion initiatives and more. The interactive process can begin when the employee makes the request. Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. Should an Accommodation Request Automatically Trigger FMLA? If more accommodation ideas are needed, the employer can ask the employees medical provider for ideas in some cases medical professionals are able to suggest effective accommodations. %PDF-1.5 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 assistance is desired, please call the ACCES Consultant at (858) 888-8888. The accommodation [will begin or began] on [date] and end based upon future doctor visits. Necessary information may include documentation of the disability and need for accommodation. Its a good idea to touch base with your employee on how things are going. % HSmk0nv^- IA}(uNf:$+ifaGM0b_C Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. Remember to only ask for the necessary medical information. Topics covered: National employment laws, harassment, accommodations, training, and more. ' ( 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 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. h\ CJ + : 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. 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. PDF CAN WE TALK?: The ADA Interactive Dialogue - Disability, Leave & Health Employees can start the interactive process using any form, including verbal communication. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. A federal agency recently updated its accommodation policy. You can even have a trial period whenever theres doubt that an accommodation will be a good fit. McAfee & Taft A Professional Corporation. The following persons will be present at this meeting: [names of meeting participants]. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. ADA's Interactive Process Is a Two-Way Street - SHRM document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> ", "Clarity is important," he said, "and getting things in writing adds to clarity. The important thing for employers to remember is not to ask for too much information. An employee's request for Family and Medical Leave Act (FMLA) time off automatically triggers an employer's Americans with Disabilities Act (ADA) obligations, even absent a specific request for . Using the Interactive Process to Reach a Reasonable Accommodation.

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