Should an Accommodation Request Automatically Trigger FMLA? Together you can discuss the potential impact of the accommodations. If a disability precludes an employee from performing one or more essential job functions, the Department and employee, in consultation with Vocational Rehabilitation, Employee Relations, and other offices as necessary, should begin the Interactive Process. But this all counts as the interactive process. Please confirm that you want to proceed with deleting bookmark. The DFEH has created a sample Request for Reasonable Accommodation package to assist employers and employees in engaging in the interactive process. 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. In this regard, the court observed that Time Warner had "a record of granting [the plaintiff's] numerous accommodation and FMLA leave requests back to 2013, even when it was not required to do so by law. What Now? $("span.current-site").html("SHRM MENA "); endobj 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. The employee who requested the accommodation is often the best source of information about the disability and possible accommodations. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. 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). If there is any question concerning the nature of the limitation or appropriateness of an accommodation being considered, the supervisor should consult with the Vocational Rehabilitation Counselor in University Health Services. 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. SAMPLE FORM FORMONITORING ACCOMMODATIONS JAN offers the following sample form as a tool to assist in the interactive accommodation process. 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. 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. 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. 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. The accommodation [will begin or began] on [date] and end based upon future doctor visits. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. Keep your message as short as possible. If assistance is desired, please call the ACCES Consultant at (858) 888-8888. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. Choose someone to ensure that the request for accommodations gets processed. Before meeting with the employee, review the employee's current job description and any available "Written follow-up in both directions that confirms what the discussion has been. So its important to note that your employees request doesnt have to be in writing. An employee's request for Family and Medical Leave Act (FMLA) time off automatically triggers an employer's Americans with Disabilities Act (ADA) obligations, even absent a specific request for . &. In response, the company requested additional information regarding the number of episodes the plaintiff experienced per week and the duration of the episodes. Topics covered: National employment laws, harassment, accommodations, training, and more. He does not link his need for the new chair with a medical condition. {l[]vvr=?g6|j''Gu,R*$]=~tn~YfNgr2GU%lhE~z$~~| X,jD^jC5ySEiyHLHN>Od>=*'wQ5V1no}w vs_V\FG:FsZv7B,?/ iZ. This button displays the currently selected search type. 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. If it is a written letter, include a handwritten signature. All rights reserved. Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. hn CJ ji.3 The description of the [modified/alternate] employment is as follows (include description of accommodation here): This is a temporary accommodation, not a permanent position. 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. ", "When implementing an accommodation, supervisors sometimes disclose medical information,"Loy said. However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. Assuming you return the requested information within the time frame noted above, we have scheduled an interactive meeting with you on [time] at [location]. 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. 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. 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. ; 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. 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. Please note that all such forms and policies should be reviewed by your legal . Thats because their request for a new chair isnt related to a medical condition. 18-50053 (Dec. 12, 2018). However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. Trello. 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. The interactive process often begins when the employee makes an accommodation request. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions. However, the company offered her the option of leaving work at 4 p.m. No Past In-Person Trainings for Interactive Process. 4 0 obj c'`WpPs%<8 I\`aC~",&,b)qo)&ZG*#TFL*#QTy`^`t"d+p[|:n.Hmb]7Dx=>J ?|wadG 1fO7,m/I?viwMkO % "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. This is a request for reasonable accommodation. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 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. Under the regulations, the interactive process obligation is triggered by knowledge of the need for an accommodation. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. 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. When an employee becomes unable to perform the essential, assigned duties of the currently-held position as a result of a covered disability, the Berkeley campus is committed to providing services to assist the employee. Pay careful attention to medical-related issues employees bring to your attention. "Interactive Process Checklist" any time they talk to the employee regarding these issues. Topics covered: Culture, executive buy-in, discrimination, training, equal pay, and more. However, in keeping with the spirit of the interactive process, an employee who is struggling to adequately perform should be asked if there is any type of assistance that might enable the employee to better perform his/her job functions and, along with other material describing employee support resources, the employee should be given information about campus policies/procedures applicable to employees with disabilities. the employees disability and need for accommodation are obvious. 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. 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. The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. 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. For example, it is sufficient if the employer receives notice of treatment needed by an employee. Sometimes employers are not sure whether an accommodation will work and are afraid if they try it out they will be locked in forever. Also, include a closing and a polite signature. 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. 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. By using this site, you accept and agree to be bound by these terms. 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. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. Assess the operational needs of the department, considering issues such as: The number of persons employed in the department; The number, type and locations of the units within the department; The type of operation, including the composition, structure, and functions of its workforce, its geographic separateness, and the administrative relationship of the department to the campus; The impact of the accommodation on the operation of the department, including the impact on the ability of other employees to perform their duties and the impact on the department's ability to conduct business; The overall financial resources of the UC system; The impact of the accommodation on campus operations. McAfee & Taft A Professional Corporation. Members may download one copy of our sample forms and templates for your personal use within your organization. 1 0 obj ta SKN "If an employee mentions some type of limitation or problem, the supervisor should err on the side of caution and move to talk to the employee.". The company was able to edit these forms to fit its needs. ", "Clarity is important," he said, "and getting things in writing adds to clarity. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. A lot of times we can find an accommodation., Fram agreed: When you get into anyof this, call JAN, he advised. After Completing FMLA, The Employer Uses The Interactive Process And Lawfully Terminated Its Employee The crossroad between the protections of the FMLA and the ADA is somewhat difficult to navigate. Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. 3 0 obj <> 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 " When in doubt, ask for clarification on the request and why. 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. 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.]. 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. 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. Fram said he sees the same problem. These accommodations are specific to each individuals needs. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. ", "On the communication side, one of the really useful tools is documentation," Schwarz said. {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. Necessary information may include documentation of the disability and need for accommodation. For example, if an employee needs an accessible parking space, coworkers need to know only that this person has a specific space not why. Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. After exhausting her FMLA leave in March 2014, she asked to work from home due to difficulties transitioning her child to bottle feeding. [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." Zappos. Areasonable job accommodationmay include: Heres an example of a reasonable job accommodation: A cleaning crew works in an office building. Consistent with departmental and campus practices, the supervisor may agree to an accommodation for essential functions, and to accommodation for, or elimination of, non-essential functions. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." Please purchase a SHRM membership before saving bookmarks. Circumstances or the effectiveness of accommodations can change over time. - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? To request permission for specific items, click on the reuse permissions button on the page where you find the item. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. "You rarely see an . 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. Dont assume that thecosts of providing the accommodationwill be too expensive. Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. 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. ` ", Additionally, employers sometimes request or gather too much medical information, Loy said. They are excellent. The Interactive Process can begin in a number of ways. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. Virtual & Washington, DC | February 26-28, 2023. This is considered an accommodation request. To cope with a paradoxical labor market, HR pros still squarely focused on recruiting may need to re-evaluate role requirements, inclusion initiatives and more. If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. 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. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. Make use of positive language and try to remain positive throughout the email. |^| This includes: Evaluating the employee's functional abilities and limitations; Exploring options available for an accommodation. The interactive process isnt always necessary, though. 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. 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. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. Reviewing current vacancies within the department. Example:Your employee tells you theyre having issues getting to work on time because of a medical treatment they are receiving. No Past Exhibit Booths for Interactive Process. Your session has expired. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. For example, if an employee with a non-visible disability indicates she is having trouble completing her work tasks because of her disability, the employer does not have enough information to provide effective accommodations. An employee submitted an accommodation request for an ergonomic chair due to a back injury. The Americans with Disabilities Act (ADA) requires covered employers to provide effective, reasonable accommodations for employees with disabilities. 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And while it's not a per se requirement, the law favors an "interactive process" for determining whether an effective accommodation is available. Evaluate whether the employee can perform the job safely. A Transfer Search may be another option. Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. 222 0 obj <>stream As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. 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. 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. Therefore, any time an employee indicates that he/she is having a problem and the problem is related to a medical condition, the employer should consider whether the employee is making a request for accommodation under the ADA. Unnecessary delays are a violation of the ADA. 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. The important thing for employers to remember is not to ask for too much information. Accommodation options will be considered in discussions with the employee. "You rarely see an employee who knows about the ADA and asks for a reasonable accommodation," he told HR Dive;"You need to start the process even if they havent used any magic words. Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? Please enable scripts and reload this page. 4 Please read our Cookie Notice. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. 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. 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. The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. *&edtb?iB!+"M@"8hzMC|;q 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. For example, if an employee who uses a wheelchair requests that his desk be placed on blocks to elevate the desktop above the arms of the wheelchair and the employer complies, an appropriate accommodation has been requested, identified, and provided without the need for a formal process. There should be no ambiguity in the explanation of the change. "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. An employer causing a breakdown in these informal discussions or refusing to engage in it altogether can serve as evidence of discrimination. The Interactive Process can begin in a number of ways. "If it wont work, you can show you did all you could have done. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. JANis a free national resource for employers looking for help with accommodations. Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. Think of theinteractive processas collaborating with your employees to develop accommodations. "), That the supervisor said, "How can I help you? "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." No Past Recorded Modules for Interactive Process. hn UVmH nH u hn jD hn U ", 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.". 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. Here at UC Berkeley, we value your growth and development throughout your career journey. @ A B U V n o z { <>/Metadata 73 0 R/ViewerPreferences 74 0 R>> The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process. Adobe PDF viewer is required for some of these documents. This tech company uses their own platform to house their employee handbook, which they call an "employee manual.".
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