The following list provides some guidelines. The Interactive Process can begin in a number of ways. This notice does not need to disclose the employees specific condition. n\3C[% An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. Zappos. 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Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. 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. Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. Work with your employee to understand their specific challenges or limitations. Your release form states you may return to work with the following medical work restrictions: XXXXXXXXXXXXX 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. After an employee requests accommodations, the employer must take the appropriate steps. 18-50053 (Dec. 12, 2018). This area cover the performance management review program 'Achieve Together' and the Foundational Skills program. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. hn CJ ) $ % A B c ) * 6 gd] F^F 8&#$$d &d N P )#P &#$$d &d N P a&#$-D(M Fh^F`h 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. The Office of Diversity, Equity, Inclusion, and Belonging (DEIB) fosters community and engagement for staff, develops programs and experiences for employees to increase their racial literacy and cultural fluency, and is committed to creating a community where all employees can be their authentic selves at work everyday. As stated by the Third Circuit Court of Appeals in Taylor v. 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. 1998) (when the employee "fail[s] to hold up her end of the interactive process by clarifying the extent of her medical restrictions, [the employer] cannot be held liable for failing to provide reasonable accommodations"); Copyright Welcome to the newest section of our site - Talent Acquisition! These forms included medical inquiry, onboarding, trial, and other process forms. Keep it brief. ", The employees request. The assistant wanted the employee to sign a blanket medical release. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. 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 interactive design is user-friendly and highly engaging. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. ta SKN You can update your choices at any time in your settings. 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. "Focus on disclosing only information that is need-to-know. 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We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 2 0 obj The human resources director informed him that the company policy is to only ask for what is absolutely necessary. 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. 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? 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. It is with the understanding that after each future doctor visits you will provide a medical update indicating either a release to perform the essential functions of your position or information describing updated functional limitations, so that a determination can be made regarding continuation of the temporary accommodation. 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. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. Then select the most appropriate accommodation for you and your employee. 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. After complaining to her supervisor, the supervisor talked with HR. A good idea is to include a discussion of the interactive process as part of your ADA policy. Dont assume that thecosts of providing the accommodationwill be too expensive. 4 0 obj 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. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. There should be no ambiguity in the explanation of the change. Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. The ability of employers and their managerial staff to recognize requests is important. JANis a free national resource for employers looking for help with accommodations. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. The supervisor should consult with the employee to find out his or her specific physical or mental abilities and limitations as they relate to the essential job functions, and to discuss the employees preferences with regard to accommodations. <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. If assistance is desired, please call the ACCES Consultant at (858) 888-8888. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. $("span.current-site").html("SHRM China "); Circumstances or the effectiveness of accommodations can change over time. Before sharing any final decision with the employee, the Department should consult with the Disability Case Management Counselor, Employee Relations and the Departmental Human Resources Manager. 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. > g  f bjbj 4 X " Please read our Cookie Notice. Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. $("span.current-site").html("SHRM MENA "); var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); 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. 184 0 obj <> endobj You dont want the front-line supervisor feeling like he needs to answer this question,"Schwarz said, and "it's not realistic that every manager/supervisor will become an expert in the interactive process. 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. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. ", 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.". 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. 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. No Remote Monthly Series Training for Interactive Process. Please log in as a SHRM member before saving bookmarks. Your Employee & Labor Relations team now supports both represented and non-represented employees. You have successfully saved this page as a bookmark. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. o @ Keep up with the story. First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. 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. "If it wont work, you can show you did all you could have done. <> 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. On Feb. 24, 2015, the company issued the plaintiff a written warning as a result of poor attendance unrelated to FMLA-approved absences and advised that failure to improve her attendance would result in disciplinary action. Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. 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. 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. % $(document).ready(function () { <> Equal Employment Opportunity Commission, For more training and information on the interactive process, see JAN's Just-In-Time Training Module ", For information on the interactive process in relation to service providers, see, No Blog Posts available for Interactive Process. ET, Webinar Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. Remember to only ask for the necessary medical information. A request for assistance or indication by the employee that some corrective measure may need to be taken can be made verbally and casually, as well as formally. 0 Decision-making authority: Department head or designee. The law has helped hundreds of millions of workers in its relatively short history. 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;}'; 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. That way, no one is surprised when the accommodation is revisited down the road. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. If the accommodation involves a schedule change or policy modification, then certain managers or supervisors may need to know of the change to effectively implement it. %PDF-1.5 Reviewing current vacancies within the department. 4 The Americans with Disabilities Act (ADA) requires covered employers to provide effective, reasonable accommodations for employees with disabilities. endstream endobj startxref The law requires that employees and employers engage in the Interactive Process. 1 0 obj &. Never assume an employee is disabled. 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. The most important way to monitor accommodations is to encourage ongoing communication. Once an accommodation has been chosen, it is time to implement the accommodation. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? Communication is especially important if youve provided any assistive technology or equipment. Topics covered: Employee learning, training, onboarding, mentoring, career development and more. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). hVnF}LwYIn]m2Y$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 When in doubt, ask for clarification on the request and why. Whether sending an email or letter, add a professional greeting that includes the person's name. Pay careful attention to medical-related issues employees bring to your attention. If the employee cannot provide the necessary information, then medical documentation can be useful. Members may download one copy of our sample forms and templates for your personal use within your organization. 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. Step 1 - Create a policy. This includes with or without reasonable accommodation. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. 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. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. 3 0 obj Assess the effectiveness of the accommodation(s) in enabling the employee to perform the essential functions of the job. 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. stream Notice may also come in the form of objective proof, such as sudden or increasing inability to perform job functions or other physical manifestations of symptoms that are readily observable to others in the workplace. 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. The company was able to edit these forms to fit its needs. 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. Also, include a closing and a polite signature. "), That the supervisor said, "How can I help you? A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. %PDF-1.5 % 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 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. 1. That the employer has provided what was requested. 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! However, they may be a useful tool for both employers and employees. All rights reserved. Second, the employer must also have notice of the employees desire to obtain some type of accommodation. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. Members can get help with HR questions via phone, chat or email. Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. Unnecessary delays are a violation of the ADA. When the need isn't obvious, more information will be helpful when discussing accommodations. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. But this all counts as the interactive process. <> ; The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. The sample Options Letter may be modified by an appointing power Areasonable job accommodationmay include: Heres an example of a reasonable job accommodation: A cleaning crew works in an office building. endobj h\ CJ Setting expectations at the beginning of the process could help reduce employees' apprehension and cut down on unnecessary phone calls and e-mails. A Transfer Search, if appropriate, is a continuation of the Interactive Process. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. ' ( 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 Understand how these limitations impact their essential job functions. As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. 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. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. hn CJ ji.3 An important step in the performance review process is choosing the standard for the evaluation. 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. The employee chose to apply for disability benefits and, when he did not return to work after one year, the hospital terminated his employment. But the FMLA doesnt provide paid leave, and employers say it can be difficult to administer. Shortly thereafter, the company terminated the plaintiff's employment after she failed to report to work due to child care issues. 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. Learn more in our Cookie Policy. Make use of words in such a way that . Uncertainty from the start. 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 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. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. 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. $('.container-footer').first().hide(); @ A B U V n o z { If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. ", "Has that triggered the need for an interactive process? According to the EEOC, the interactive process is not always required under the ADA.