Friends, family, and health professionals can request accommodations on an employees behalf. 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 " Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. The interactive process can begin when the employee makes the request. <>/Metadata 73 0 R/ViewerPreferences 74 0 R>>
Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. HTMo0ZWb(zmAZ#yJ~$e9E&iIl,`4N4rg"YydwA[. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. Members may download one copy of our sample forms and templates for your personal use within your organization. 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. The person writing the email should make sure that the change in process is communicated clearly. 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. 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 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. Its a good idea to touch base with your employee on how things are going. "Often the request doesn't come until, for example, theres a performance management action thats going on." This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". 4 0 obj
Fram said he sees the same problem. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. Never assume an employee is disabled. Step 3: Get Job Descriptions in Order endstream
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To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. This notice does not need to disclose the employees specific condition. Dont prematurely end the process,"Schwarz said. Should an Accommodation Request Automatically Trigger FMLA? 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.". Since a new individual took over the ADA Coordinator position for a community college, an effectiveness check for all accommodation approvals is required. Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. When the need isn't obvious, more information will be helpful when discussing accommodations. 3 0 obj
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You can even have a trial period whenever theres doubt that an accommodation will be a good fit. }); if($('.container-footer').length > 1){
After six months, she hadnt heard anything. When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. 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. Ask your employees if they have any thoughts on what might help. A large company wanted to standardize all of the accommodation requests it receives. The EEOCs recommended starting point is to use an interactive process once a request has been made. 2023 0
Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. "If it wont work, you can show you did all you could have done. <>/Font<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>>
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The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. endobj
It also designated the majority of the plaintiff's leave previously taken in January and February 2015 as non-FMLA-qualified leave. Zappos. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. Please purchase a SHRM membership before saving bookmarks. 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. If everything is working well, she continues to check in every six months. Navigating the New EU Unitary Patent, EEOC targeting discriminatory use of artificial intelligence, Court upholds firing of marijuana cardholders discharged after positive weed test, Deadline nears for complying with PUMP Acts expanded protections for nursing mothers in the workplace. Court decisions interpreting the ADA provide some general principles. No Past Exhibit Booths for Interactive Process. Thats because their request for a new chair isnt related to a medical condition. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. 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. II. {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w
vs_V\FG:FsZv7B,?/ iZ. The employer can switch the marginal functions performed by these two employees. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. After complaining to her supervisor, the supervisor talked with HR. Asking for all medical records will rarely, if ever, meet this test. }
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The ability of employers and their managerial staff to recognize requests is important. ' ( 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 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. IV. 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. $("span.current-site").html("SHRM China ");
Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. This is considered an accommodation request. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . This process is initiated either by: The employee's written or verbal request for assistance, or. The standard of proof required here is low: when an employee continues to come to work, and continues to perform at least some of his or her essential duties, employers are encouraged to proceed with the interactive process. Then select the most appropriate accommodation for you and your employee. So when, exactly, does an employer have adequate or sufficient notice to initiate the interactive discussion without receiving a request for accommodation from the employee? Another EEOC recommendation is to consider the employees preference. Determine if any repair, maintenance, or replacement is necessary to any equipment. ", Sencenbaugh said that when ADA issues are intertwined with performance issues, employers should always consider how its actions will look to the employee and to a jury a year from now. If there is a termination, he said, all the cards are on the table. ", "Clarity is important," he said, "and getting things in writing adds to clarity. Reasonable accommodation can include, but is not limited to, the following: Employees with disabilities may have separate rights to unpaid leave under the Federal Family and Medical Leave Act or the California Family Rights Act. xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. " endobj
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[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." Accommodation options that can be explored, include, but are not limited to: Making existing facilities used by employees readily accessible to and usable by the disabled employee; Acquiring or modifying equipment or devices; Providing qualified readers or interpreters; and. 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. the employees disability and need for accommodation are obvious. That way, no one is surprised when the accommodation is revisited down the road. 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. 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. 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. Decision-making authority: Department head or designee. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. The Interactive Process can begin in a number of ways. Once an accommodation has been chosen, it is time to implement the accommodation. The request can also come from someone other than the employee. Learn more about your compensation, benefits and everything that goes into a Total Rewards package. A Transfer Search, if appropriate, is a continuation of the Interactive Process. When a request is made, employers should first look for a quick, simple and easy solution,Fram said. 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. }
Virtual & Washington, DC | February 26-28, 2023. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. These forms included medical inquiry, onboarding, trial, and other process forms. stream
{CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. Areasonable job accommodationmay include: Heres an example of a reasonable job accommodation: A cleaning crew works in an office building. 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. 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. Copyright ", 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.". It's not a terribly complicated idea, but many employers fall short in the execution. 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. @ A B U V n o z { The following list provides some guidelines. As stated by the Third Circuit Court of Appeals in Taylor v. The law has helped hundreds of millions of workers in its relatively short history. 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. After the full implementation of an accommodation, she follows-up with the employee in six weeks to ask if it is working. Also, include a closing and a polite signature. A Department should consider the factors listed in Section III. Reviewing current vacancies within the department. It was created to assist you while you are recovering. All rights reserved. > g f bjbj 4 X
" If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. Employees Responsibilities:
Work within the written medical limitations
Provide medical updates of functional limitations
If taken off work by your doctor, notify supervisor and [name], ACCES Specialist. As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. Example C: A new employee, who uses a wheelchair, informs the employer that her wheelchair cannot fit under the desk in her office. %PDF-1.5
If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. Ultimately, she refused this proposal and instead sought intermittent FMLA leave that would allow her to leave at 2 p.m., and she immediately adjusted her schedule accordingly. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. Streamlining the Interactive Process When Accommodating Job Applicants, Tell 'Em About It: Educating the Workforce about the ADA & Accommodations, To Ask, or Not to Ask? Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u
accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. When expanded it provides a list of search options that will switch the search inputs to match the current selection. 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. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. The employee who requested the accommodation is often the best source of information about the disability and possible accommodations. Once the employer has notice of a disability and the need for an accommodation, the ADA requires (1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employees request; and (3) offering an accommodation that is reasonable and effective..
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