Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. 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. Interactive Process - AskJAN.org 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. Step 1 - Create a policy. ' Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. Shortly thereafter, the company terminated the plaintiff's employment after she failed to report to work due to child care issues. However, they may be a useful tool for both employers and employees. The following list provides some guidelines. Neither members nor non-members may reproduce such samples in any other way (e.g., to republish in a book or use for a commercial purpose) without SHRMs permission. Employers must initiate an interactive process when an applicant or employee requests reasonable accommodations. To request permission for specific items, click on the reuse permissions button on the page where you find the item. Notice may come from the employee directly, or from the employees family members, friends, health professionals or other representatives. 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. stream "If it wont work, you can show you did all you could have done. To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. At this step, employers should be open to new ideas and new ways of doing things. The company was able to edit these forms to fit its needs. "Often the request doesn't come until, for example, theres a performance management action thats going on." Federal Appeals Court Emphasizes Importance of Interactive Process in The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. } The request doesnt have to include any specific terminology. According to the EEOC, the interactive process is not always required under the ADA. 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. Notice of a disability alone is not enough to trigger the obligation to initiate the interactive process. 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 . If it is decided that a proposed accommodation is unreasonable or presents an undue hardship, the Department should re-initiate the Interactive Process with the employee to try and arrive at a mutually agreeable alternative to the originally proposed accommodation. Pay careful attention to medical-related issues employees bring to your attention. Your Employee & Labor Relations team now supports both represented and non-represented employees. " The process requires an individualized assessment of both the job and the specific physical or mental limitations of the individual that are directly related to the need for reasonable accommodation. ("I need an anti-glare screen."). The checklist and any notes should be maintained in a separate confidential medical file for that employee. ET, Webinar Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. There should be no ambiguity in the explanation of the change. Example B: An employee tells his supervisor, "I need six weeks off to get treatment for a back problem." The company did not receive information in response to this request. 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. A federal agency recently updated its accommodation policy. An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. 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. temp_style.textContent = '.ms-rtestate-field > p:first-child.is-empty.d-none, .ms-rtestate-field > .fltter .is-empty.d-none, .ZWSC-cleaned.is-empty.d-none {display:block !important;}'; Take the employee's expressed preferences into consideration. c'`WpPs%<8 I\`aC~",&,b)qo)&ZG*#TFL*#QTy`^`t"d+p[|:n.Hmb]7Dx=>J ?|wadG 1fO7,m/I?viwMkO % Employee's Failure to Participate in Interactive Process Dooms ADA 3 0 obj + : UNIVERSITY OF CALIFORNIA, SAN DIEGO EMBED Word.Picture.6 SANTA BARBARA ( SANTA CRUZ BERKELEY ( DAVIS ( IRVINE ( LOS ANGELES ( MERCED ( RIVERSIDE ( SAN DIEGO ( SAN FRANCISCO Reasonable Accommodation Agreement Date: Dear [Mr./Ms. But the supervisor should have enough training to know when its time to go to HR. By using this site, you accept and agree to be bound by these terms. 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. Again, the employee who requested the accommodation is a good place to start so employers should always invite the employee to suggest accommodations. Once accommodation options have been explored, the employer must choose what accommodation to implement. The person writing the email should make sure that the change in process is communicated clearly. Employees last name], We have received your medical release from your doctor, [name] dated [date]. An employer that grants schedule adjustments that aren't required under the Americans with Disabilities Act (ADA) may later stop allowing such changes when the employee declines to help the employer identify a reasonable accommodation, a recent 5th U.S. $("span.current-site").html("SHRM China "); II. Please note that all such forms and policies should be reviewed by your legal . In order for the practitioner to provide a knowledgeable recommendation, the job description with the essential assigned duties annotated and a PEM form for the job should be provided to the employee to give to her/his practitioner. 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', hn CJ ji.3 endstream endobj 189 0 obj <>stream This includes with or without reasonable accommodation. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. 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 following persons will be present at this meeting: [names of meeting participants]. ", 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. 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. Inform your employees that a requirement of the ADA is that both parties communicate in good faith regarding reasonable accommodations. 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. hn CJ ) $ % A B c ) * 6 gd] F^F 8&#$$d &d N P )#P &#$$d &d N P a&#$-D(M The Interactive Process can begin in a number of ways. (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. This documentation may also include the medical practitioners suggestions about potential accommodations. It is understood that any problems that may arise during this transitional work period should be discussed openly and supportively. 3 0 obj Interactive Process Freeman Rehabilitation Services Debbie Freeman P.O. ", 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. Use JAN as needed we are free, and an outside resource. <> In some cases, the employees disability and need for accommodation are obvious and no additional information is needed. > g  f bjbj 4 X " Topics covered: Pay & bonuses, salary history, pay transparency, raises, total rewards, and more. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. 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 Americans with Disabilities Act (ADA) not only prohibits discrimination based on disability, but it also requires that employers provide workers with disabilities reasonable accommodations. After an employee requests accommodations, the employer must take the appropriate steps. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. } How to engage in the 'Interactive Process' with an employee 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. If assistance is desired, please call the ACCES Consultant at (858) 888-8888. If the accommodation is a reassignment, then the employee may need time to acclimate to the new job. Please confirm that you want to proceed with deleting bookmark. The important thing for employers to remember is not to ask for too much information. <> What Now? $("span.current-site").html("SHRM MENA "); 184 0 obj <> endobj 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?