Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. 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. I ^ b h ) , z |n`n h\ B*OJ QJ ^J ph hn B*OJ QJ ^J ph h\ >*B*OJ QJ ^J ph $h\ h\ >*B*OJ QJ ^J ph $h\ hn >*B*OJ QJ ^J ph hn 56OJ QJ \]^J hn hn B*OJ QJ ^J ph h}R OJ QJ ^J hn OJ QJ ^J hn B*OJ QJ ^J ph hn OJ QJ ^J %6 7 C g S T 0 hFj! Please log in as a SHRM member. 3 0 obj ", Additionally, employers sometimes request or gather too much medical information, Loy said. The ability of employers and their managerial staff to recognize requests is important. When in doubt, ask for clarification on the request and why. 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. Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. ta SKN 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. The interactive design is user-friendly and highly engaging. 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. 3 0 obj The following list provides some guidelines. 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. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. To request permission for specific items, click on the reuse permissions button on the page where you find the item. Members may download one copy of our sample forms and templates for your personal use within your organization. Necessary information may include documentation of the disability and need for accommodation. Assuming the proper criteria are met, the next step is for the employer and employee to engage in an "interactive process". Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. Employers that follow the technical requirements of the statute, demonstrate flexibility and document their compliance put themselves in the best position in the event of litigation. The company was able to edit these forms to fit its needs. else if(currentUrl.indexOf("/about-shrm/pages/shrm-mena.aspx") > -1) { Areasonable job accommodationmay include: Heres an example of a reasonable job accommodation: A cleaning crew works in an office building. 4 JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). 200 0 obj <>/Filter/FlateDecode/ID[<5D6158DB4243BF4189442C3921752F86>]/Index[184 39]/Info 183 0 R/Length 86/Prev 194116/Root 185 0 R/Size 223/Type/XRef/W[1 3 1]>>stream (Marginal functionsare responsibilities that, once altered or removed, dont change the primary purpose of the job.) The following situations and solutions are real-life examples of accommodations that were made by JAN customers. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." The checklist and any notes should be maintained in a separate confidential medical file for that employee. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. After this, one person was assigned responsibility for making sure an accommodation request is processed so the request is not lost on someones desk. Professional Pointer: Employee use of FMLA leave, particularly when the leave taken is intermittent, can be one of the more challenging leave-related situations employers face. 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. Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. 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. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. "I advise employers to bend over backwards to help somebody who is saying, 'I need some help'for something that might possibly be a disability, whether or not you like the person,"Fram said. After an employee requests accommodations, the employer must take the appropriate steps. 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. That way, no one is surprised when the accommodation is revisited down the road. Its a good idea to touch base with your employee on how things are going. The company denied her request, noting that her position required her to work from the office during normal business hours, including the afternoons. The law requires that employees and employers engage in the Interactive Process. 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.. Titled " The Zappos Culture Book ," this handbook highlights the company's dedication to workplace culture. Asking for all medical records will rarely, if ever, meet this test. 2023 In response, again citing anxiety and panic attacks resulting from heavy traffic, the plaintiff submitted an accommodation request for a modified in-office schedule, from 7 a.m. to 2 p.m., working from home in the afternoons. The employee does not have to formally notify the supervisor or department in writing. The request had been sitting on one of the desks in the purchasing department. Also, include a closing and a polite signature. Topics covered: National employment laws, harassment, accommodations, training, and more. 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. Once accommodation options have been explored, the employer must choose what accommodation to implement. The EEOCs recommended starting point is to use an interactive process once a request has been made. ", 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.". @ A B U V n o z { %PDF-1.5 <> The most important way to monitor accommodations is to encourage ongoing communication. 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. Some companies choose to assess employees by grading their performance in certain areas on a scale of one to 10. 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 " The campus will explore reasonable accommodation options when an employee requests accommodation, or there is evidence that an employee may need accommodation due to a covered disability. This notice does not need to disclose the employees specific condition. If there is more than one option, the employer should consider the preference of the employee. $("span.current-site").html("SHRM MENA "); 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. By using this site, you accept and agree to be bound by these terms. Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. endstream endobj 189 0 obj <>stream 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. 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. 4 0 obj endobj This includes with or without reasonable accommodation. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. 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. 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. <> ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. If there is no solution, the best thing is your documentation showing that you did explore accommodation options. l&#$/ h o u x Please enable scripts and reload this page. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); 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', If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. 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 law requires that employees and employers engage in the Interactive Process. 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. When the need isn't obvious, more information will be helpful when discussing accommodations. The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. Keep your message as short as possible. The company did not receive information in response to this request. 1630.2(o)(3). The interactive process is a conversation between an employer and an employee to determine if the employee requires a reasonable accommodation to perform the essential functions of their job and if so, what the accommodation (s) may be. Empower your employee to express concerns with their accommodations at any time. Choose someone to ensure that the request for accommodations gets processed. xksF{fQ4A.x&v^zMt$c%(Rr`fZMdrb,. process will be maintained in your medical file, which is separate from your personnel file. The sample Options Letter may be modified by an appointing power But the supervisor should have enough training to know when its time to go to HR. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. hbbd```b``:"kd6di`f0^ X|9$x hH : ", "Has that triggered the need for an interactive process? Dont prematurely end the process,"Schwarz said. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to persons with disabilities unless doing so would impose an undue hardship or pose a direct threat to the safety of the employee or others. ", Often, employers cause a breakdown in the interactive process because they're just not trying hard enough.
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