Please log in as a SHRM member before saving bookmarks. Necessary information may include documentation of the disability and need for accommodation. This tech company uses their own platform to house their employee handbook, which they call an "employee manual.". If the employee requests a type of assistance the supervisor may simply provide it (without any reference to whether the request is disability-related), or the supervisor may ask if the assistance is being requested as an accommodation to a disability (and if the response is affirmative, proceed under campus procedures for accommodating employees with disabilities). 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. 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 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. 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. ET, Presented by studioID and Express Employment Professionals, FMLA: The 30-year legacy of a celebrated and complicated employment law. When the need isn't obvious, more information will be helpful when discussing accommodations. While the company found that her request did not technically qualify as an ADA accommodation, it nevertheless granted it. However, in other cases the individual may know that he/she is having difficulty, but may be uncertain about the exact cause or possible solution. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. }); if($('.container-footer').length > 1){ The supervisor may request that the employee provide written documentation from a licensed medical practitioner, specifying the employees functional limitations as they pertain to the job, without providing diagnostic information. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. So it's important to note that your employee's request doesn't have to be in writing. Learn more in our Cookie Policy. The human resources director informed him that the company policy is to only ask for what is absolutely necessary. That the supervisor didn't ask anything medical. 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. A Transfer Search, if appropriate, is a continuation of the Interactive Process. Members can get help with HR questions via phone, chat or email. Together you can discuss the potential impact of the accommodations. Keep your message as short as possible. Make use of words in such a way that . 4 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 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. endobj Organizations dont invest enough time looking for accommodation options and dont document where/how they have looked, said Loy. If equipment is involved, then it needs to be properly installed and the employee needs to be trained in its proper use. Many employers dont want to, because they dont want to hear what JAN says, but you can be sure that if youre sued the employees lawyer will be calling JAN. You cant hide your head in the sand on this. " This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." 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. The ability of employers and their managerial staff to recognize requests is important. This is a request for a reasonable accommodation. Members may download one copy of our sample forms and templates for your personal use within your organization. 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! Once youve identified an accommodation request, its best to take action immediately. 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. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. Empower your employee to express concerns with their accommodations at any time. One member of the crew wears a prosthetic leg which enables him to walk very well, but climbing steps is painful and difficult. 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 employees disability and need for accommodation are obvious. They are excellent. } One good approach is to withhold the employees name and identifying information from outside resources. It was created to assist you while you are recovering. Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. Keep up with the story. Please read our Privacy Notice, Terms of Use, Cookie Notice, CCPA Notice, and Website Accessibility Policy. % Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. ", 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.". After an employee requests accommodations, the employer must take the appropriate steps. <> The following persons will be present at this meeting: [names of meeting participants]. The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. 18-50053 (Dec. 12, 2018). Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. Fh^F`h What does antisemitic discrimination look like at work? 1 0 obj "Focus on disclosing only information that is need-to-know. This is a request for reasonable accommodation. The law requires that employees and employers engage in the Interactive Process. However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? (800) 526-7234 (Voice) | (877) 781-9403 (TTY) | Employer Live Chat, Home| About| For Employers| For Individuals| For Others| On Demand, Feedback| Accessibility| Copyright| Disclaimer| Privacy. 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. When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance. This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation. If everything is working well, she continues to check in every six months. If there is more than one option, the employer should consider the preference of the employee. 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. 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. This includes information on the essential job functions your employee can and cant do. Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. n\3C[% ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. The purpose of an accommodation is to enable the employee to perform the essential functions of the job. 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. Communication is especially important if youve provided any assistive technology or equipment. The good news, according to David Fram,director of ADA &EEO services for the National Employment Law Institute, is there's something you can do about it. 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. These ideas, along with any ideas from the employee and employees medical provider, must be documented. 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. 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. "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. Finally, the employee says, "I'm really having trouble getting out of bed in the morning. The EEOCs guidance provides that an employer should initiate the reasonable accommodation interactive process without being asked if the employer (1) knows that he employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace problems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation. In other words, employers must recognize the need for accommodation even in the absence of an employee request. All rights reserved. IV. So its important to note that your employees request doesnt have to be in writing. The person writing the email should make sure that the change in process is communicated clearly. The accommodation [will begin or began] on [date] and end based upon future doctor visits. 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', ", 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 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. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is 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. The checklist and any notes should be maintained in a separate confidential medical file for that employee. This includes with or without reasonable accommodation. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. ", 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. The sample Options Letter may be modified by an appointing power The EEOC recommends that you analyze the job, its purpose, and its essential functions. 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. 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. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. 1630.2(o)(3). This is a request for a reasonable accommodation. Think of theinteractive processas collaborating with your employees to develop accommodations. 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. 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. process will be maintained in your medical file, which is separate from your personnel file. Schwarz offered the example of an employee who is chronically late for work and starts receiving write-ups and warnings. accommodation and refused to participate in the interactive process); Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir. JAN provides free, confidential technical assistance about job accommodations and the Americans with Disabilities Act (ADA). That there was followup, but that it stayed away from medical details. Accommodation options will be considered in discussions with the employee. Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. Circumstances or the effectiveness of accommodations can change over time. "If there is one, go ahead and just do it." (Supervisors should stay out of medical details as much as possible, Fram said.). If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed.
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