And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. o @ "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. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. Please note that all such forms and policies should be reviewed by your legal counsel for compliance with applicable law, and should be modified to suit your organizations culture, industry, and practices. 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. As part of this process, the EEOC recommends that employers: (1) Analyze the particular job involved and determine its purpose and essential functions; (2) Consult with the individual with a disability to ascertain the precise job-related limitations imposed by the individual's disability and how those limitations could be overcome with a reasonable accommodation; (3) In consultation with the individual to be accommodated, identify potential accommodations and assess the effectiveness each would have in enabling the individual to perform the essential functions of the position; and. Please note that all such forms and policies should be reviewed by your legal . The request had been sitting on one of the desks in the purchasing department. Need help with a specific HR issue like coronavirus or FLSA? "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." Employee Signature:__________________________________Date:____________ Supervisor Signature:__________________________________Date:____________ # % & = > ? The company was able to edit these forms to fit its needs. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . stream An interactive process meeting (can be in person or via telephone) was held on [date] to discuss reasonable accommodations [for you to continue working/for you to return to work] while recovering from your injury. Step 1 - Create a policy. The accommodation [will begin or began] on [date] and end based upon future doctor visits. After an employee requests accommodations, the employer must take the appropriate steps. After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk. The law requires that employees and employers engage in the Interactive Process. 222 0 obj <>stream 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. ", The employees request. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. 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. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. He does not link his need for the new chair with a medical condition. 1 0 obj These forms included medical inquiry, onboarding, trial, and other process forms. 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. 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. Trello. A large company wanted to standardize all of the accommodation requests it receives. Use JAN as needed we are free, and an outside resource. 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. 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. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. Finally, the employee says, "I'm really having trouble getting out of bed in the morning. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. 0 We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 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. Virtual & Washington, DC | February 26-28, 2023. 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. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. Once accommodation options have been explored, the employer must choose what accommodation to implement. For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". 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. Your Accommodation Request Was Denied. Once an accommodation has been chosen, it is time to implement the accommodation. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. No Past In-Person Trainings 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. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. " An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. 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. Your Employee & Labor Relations team now supports both represented and non-represented employees. 2023 Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is Determine if any repair, maintenance, or replacement is necessary to any equipment. When expanded it provides a list of search options that will switch the search inputs to match the current selection. l&#$/ h o u x As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. Please read our Privacy Notice, Terms of Use, Cookie Notice, CCPA Notice, and Website Accessibility Policy. Time Warner Cable Texas LLC hired the plaintiff in October 2012 as a workforce analyst. Take the employee's expressed preferences into consideration. You dont have to provide a reasonable accommodation that would cause undue hardship. But you must select the next reasonable and effective accommodation when this happens. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. If the employee refuses to make a good faith effort to perform the essential functions of his/her job using a reasonable accommodation offered by the supervisor, the employee and supervisor should re-initiate the Interactive Process, working with the department and the Vocational Rehabilitation group, and Employee Relations to identify alternatives. Remember to only ask for the necessary medical information. <>>> This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. Keep up with the story. Another EEOC recommendation is to consider the employees preference. At this step, employers should be open to new ideas and new ways of doing things. Court decisions interpreting the ADA provide some general principles. As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. hVnF}LwYIn]m2Y$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 You have successfully saved this page as a bookmark. The employee does not have to formally notify the supervisor or department in writing. The original accommodation was a "transitional accommodation," that is it was intended for a specifically defined purpose and time period has elapsed; The employee indicates that a new accommodation may be necessary; or. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. %PDF-1.5 ", "When implementing an accommodation, supervisors sometimes disclose medical information,"Loy said. var currentUrl = window.location.href.toLowerCase(); Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. 184 0 obj <> endobj 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', Think of theinteractive processas collaborating with your employees to develop accommodations. The Interactive Process can begin in a number of ways. 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. xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. (Supervisors should stay out of medical details as much as possible, Fram said.). $('.container-footer').first().hide(); If it is a written letter, include a handwritten signature. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. 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. As stated by the Third Circuit Court of Appeals in Taylor v. DOCUMENTING CURRENT ACCOMMODATIONS 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u If it is an email, include an email signature with your contact information. ", 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. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); Once youve identified an accommodation request, its best to take action immediately. Copyright ", 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. The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. This is a request for a reasonable accommodation. 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. 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. Any extension of this agreement beyond this will be decided on a case-by-case basis and will be dependent upon additional information from your doctor and upon the needs of the department at that time.