Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. Fram said he sees the same problem. hn U ji.3 Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. Step 1 - Create a policy. Once an accommodation request has been received, the employer should gather whatever information is necessary to process the request. 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 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. "Often the request doesn't come until, for example, theres a performance management action thats going on." 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.". As a part of this update, disability program managers have to touch base with the Job Accommodation Network when seeking accommodation ideas. hb```TB ea8 ,2^2o-r `{ iP~ |qW |t3utWD1$1}I? Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. Although he can perform his essential functions without problems, he cannot perform the marginal function of sweeping the steps located throughout the building. Should an Accommodation Request Automatically Trigger FMLA? Topics covered: Talent acquisition, diversity and inclusivity in hiring, employer branding, performance evaluations and more. Topics covered: National employment laws, harassment, accommodations, training, and more. Its a good idea to touch base with your employee on how things are going. When the need isn't obvious, more information will be helpful when discussing accommodations. This is a request for a reasonable accommodation. An employee's request for Family and Medical Leave Act (FMLA) time off automatically triggers an employer's Americans with Disabilities Act (ADA) obligations, even absent a specific request for . } ` <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> {CL~j%"rx6M\dcxb9GG.bUxG++%[cO#wL42x%~Dzd@?qbFa9MKL]i@&K4KI11 3|&Sm(JX-:$|6e}J +qfR@I^t+QDUB>;&Z7t. endobj Second, the employer must also have notice of the employees desire to obtain some type of accommodation. n\3C[% 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! III. 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. In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. 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. You have successfully saved this page as a bookmark. McAfee & Taft A Professional Corporation. 1. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. | 2 p.m. Lawsuits allege Kroger payroll transition glitch led to missed, incorrect paychecks, Quiet Black History Month a warning sign, DEI pros say, Starbucks faces corporate employee revolt, Everything employers must know on employee development, Boost Employee Engagement with Small Moments of Joy at Work, Winning the War for Talent: Why On-Demand Pay Is Becoming the Must-Have Benefit to Get and Keep the Best Employees, QVC, HSN parent lays off 12% of its workforce, How layoffs can have negative long-term consequences for companies, How to address the lack of hybrid work guidelines, Top 10 Workplace Trends for Thriving Work Environments, Caregiving Support: A Smart Investment for Employers in an Uncertain Economy, 5 Workplace Gaps Employers Cant Afford to Ignore, Top Compensation Sins HR Execs Must Avoid, Rethinking Population Health and the Intersection of the Primary Care Experience, NLRB judge: Starbucks committed egregious misconduct during Buffalo-area union drive, Manufacturer settles for $460K over CEOs alleged discriminatory age-based comments, What the person said when he or she came to the supervisor. Friends, family, and health professionals can request accommodations on an employees behalf. Also, include a closing and a polite signature. 3 0 obj 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! The request doesnt have to include any specific terminology. The Interactive Process can begin in a number of ways. An employers duty to initiate the interactive process without a request for accommodation from the employee, Are You In or Out? Circumstances or the effectiveness of accommodations can change over time. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. 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 following situations and solutions are real-life examples of accommodations that were made by JAN customers. If it is an email, include an email signature with your contact information. 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. endobj Members can get help with HR questions via phone, chat or email. 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. 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. 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? To request permission for specific items, click on the reuse permissions button on the page where you find the item. One way an employer can ensure effective communication with an employee who has requested an accommodation is to promptly schedule a meeting to discuss the employee's request. Employers must initiate an "interactive process" when an applicant or employee requests reasonable accommodations. 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. "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. 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. Make a request for an accommodation verbally, in writing, and/or using one of the above methods, to the RARC, the agency Workplace Equality Compliance Officer (WECO), a Deciding Official (typically the first line supervisor/manager), the servicing human resources office, or any agency employee connected with the job application process, as Knowing When to Request Medical Information, What does "Undue Hardship" mean? 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. [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." 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 The same day, the plaintiff left work early, resulting in the company's issuance of a final written warning. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. A federal agency recently updated its accommodation policy. The interactive process will look different for everyone. (4) Consider the preference of the individual to be accommodated and select and implement the accommodation that is most appropriate for both the employee and the employer. Never assume an employee is disabled. Fh^F`h That the employer has provided what was requested. Employers must act reasonably when determining whether there exists sufficient notice to initiate the 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. Zappos. Take the employee's expressed preferences into consideration. Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. Employees can start the interactive process using any form, including verbal communication. 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. When expanded it provides a list of search options that will switch the search inputs to match the current selection. var temp_style = document.createElement('style'); document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. 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. All rights reserved. 3 0 obj ", Get the free daily newsletter read by industry experts, Photo illustration: Shaun Lucas/Industry Dive;Greg Gibson/AP. 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? However, the company offered her the option of leaving work at 4 p.m. But this all counts as the interactive process. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. endstream endobj 188 0 obj <>stream If the employee refuses to make a good faith effort to perform the essential functions of his/her job using a reasonable accommodation offered by the supervisor, the employee and supervisor should re-initiate the Interactive Process, working with the department and the Vocational Rehabilitation group, and Employee Relations to identify alternatives. So it's important to note that your employee's request doesn't have to be in writing. According to the EEOC, the interactive process is not always required under the ADA. 0 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. ADA regulations provide that in order to determine an appropriate reasonable accommodation, it may be necessary for the employer to initiate an informal, interactive process with the individual with a disability in need of the accommodation. 29 C.F.R. Please purchase a SHRM membership before saving bookmarks. The law requires that employees and employers engage in the Interactive Process. 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. 4 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. endstream endobj startxref 18-50053 (Dec. 12, 2018). These ideas, along with any ideas from the employee and employees medical provider, must be documented. 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. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); Be open to doing things a different way. 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.