"Written follow-up in both directions that confirms what the discussion has been. The human resources director informed him that the company policy is to only ask for what is absolutely necessary. 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. Circuit Court of Appeals decision shows. 1998) (when the employee "fail[s] to hold up her end of the interactive process by clarifying the extent of her medical restrictions, [the employer] cannot be held liable for failing to provide reasonable accommodations"); III. Never assume an employee is disabled. 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. This notice does not need to disclose the employees specific condition. After an employee requests accommodations, the employer must take the appropriate steps. This process is initiated either by: The employee's written or verbal request for assistance, or. 18-50053 (Dec. 12, 2018). Expand your toolbox with the tools and techniques needed to fix your organizations unique needs. Please purchase a SHRM membership before saving bookmarks. This is not the case employers are free to try accommodations and stop them if they do not work. However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. The request doesnt have to include any specific terminology. Employers must also act promptly to initiate this discussion. Reasonable Accommodation - National Association of Letter Carriers AFL-CIO EEOC: Medical Leave Request Initiates ADA Obligations - SHRM The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. Before meeting with the employee, review the employee's current job description and any available Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. The person writing the email should make sure that the change in process is communicated clearly. 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 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. Your session has expired. Even if a supervisor harbors no ill will toward an employee, inadequate training can cause things to fall apart. 1. No Past In-Person Trainings for Interactive Process. An employee submitted an accommodation request for an ergonomic chair due to a back injury. %PDF-1.5 % To begin this process, the company downloaded forms from JANs A to Z: Sample Forms. Others take a more qualitative approach that involves writing a free-form paragraph summarizing the employee's strengths and weaknesses. ", Additionally, employers sometimes request or gather too much medical information, Loy said. hVnF}LwYIn]m2Y$gnVUmP;gJ+Jh1LN[Vx0;(EfxTB-[e MJ r !w2e!CJVF4""5\IexNVr7Zr':A] ;90Zj5RlQJu9MUJrZ?fi%Pz66 ~E>yQ%^4mv2TP4& ^>r9yHk*@bM45Z]{Vx\i#sL#~wTGX*Wd9ElUozj(F$Y~(*L8rp!o_TMYe**5//Z"s5WMo*tpvjgOnaH6>Ia=YLEUp}C|X3rbartqs\A:7rg7J{|Ar#fQ}'>MS *PbX6b=*y/~'JOr!hgT.t-k]%~Ma!ED]J\Q68xE.~2TY$?G!2HSD Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is % The hospital offered the employee three options: (i) transfer to a mutually agreeable position; (ii) apply for temporary disability benefits; or (iii) resign. 2023 As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. The law does not require the use of these or any other forms to make a request for a reasonable accommodation or to engage in an effective, good faith interactive process. Choose someone to ensure that the request for accommodations gets processed. DOC Reasonable Accommodation Agreement - sample letter Topics covered: Employee learning, training, onboarding, mentoring, career development and more. He does not link his need for the new chair with a medical condition. 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. Step 3: Get Job Descriptions in Order Furthermore, the court reasoned that the plaintiff had not produced evidence suggesting that the company's reason for terminating her employment was untrue. The employer must also offer to initiate an interactive process when the employer becomes aware of the possible need for an accommodation. Employers must act reasonably when determining whether there exists sufficient notice to initiate the interactive process. After complaining to her supervisor, the supervisor talked with HR. By using this site, you accept and agree to be bound by these terms. If you are claiming undue hardship, you need to be able to articulate why youve met that standard. 4 0 obj ", Sencenbaugh said that when ADA issues are intertwined with performance issues, employers should always consider how its actions will look to the employee and to a jury a year from now. If there is a termination, he said, all the cards are on the table. Step 1 - Create a policy. <> - A Deconstructive Series for ADA Terminology, What Does Reasonable Mean? 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. Be open to doing things a different way. Build specialized knowledge and expand your influence by earning a SHRM Specialty Credential. Adobe PDF viewer is required for some of these documents. The following situations and solutions are real-life examples of accommodations that were made by JAN customers. document.head.append(temp_style); You may be trying to access this site from a secured browser on the server. 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. The employee does not have to formally notify the supervisor or department in writing. Your Accommodation Request Was Denied. A JAN consultant explained the interactive process, that the employee's disclosure is a request for accommodation, and shared JAN's Sample Reasonable Accommodation Request Form for Employers to provide to the employee, in order to clarify and document her accommodation needs. &. A request for assistance or indication by the employee that some corrective measure may need to be taken can be made verbally and casually, as well as formally. Learn more about your compensation, benefits and everything that goes into a Total Rewards package. Learn how SHRM Certification can accelerate your career growth by earning a SHRM-CP or SHRM-SCP. Please read our Cookie Notice. This awareness might come through a third party, by observation, or because the employee has exhausted leave benefits but still needs reasonable accommodation. Initially, the plaintiff's FMLA paperwork indicated that she required the ability to leave early when she experienced her traffic-related anxiety "flare-ups." An important but often forgotten part of the interactive process is monitoring accommodations after they are in place. The employer can switch the marginal functions performed by these two employees. As stated by the Third Circuit Court of Appeals in Taylor v. Employees can start the. 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. After six months, she hadnt heard anything. Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. The following is a brief summary of the Interactive Process: Step 1 Invite the employee to participate in assessing return-to-work options and alternatives The CA Dept. 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. We are pleased that you are able to [continue/return] to work and that we are able to accommodate the above restrictions. $('.container-footer').first().hide(); Once again, the company agreed and allowed her to work from home from March 2014 until December 2014. 4 0 obj Members may download one copy of our sample forms and templates for your personal use within your organization. Court decisions interpreting the ADA provide some general principles. Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process. If it is a written letter, include a handwritten signature. hn U ji.3 x[OF0Ic{|Y"vB!8$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! Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. 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. var temp_style = document.createElement('style'); Titled " The Zappos Culture Book ," this handbook highlights the company's dedication to workplace culture. 4 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. Fram said he sees the same problem. Make sure supervisory personnel are trained to report observations or information that may trigger the need to initiate the process without a request. Before sharing any final decision with the employee, the Department should consult with the Disability Case Management Counselor, Employee Relations and the Departmental Human Resources Manager. An employer's duty to initiate the 'interactive process' without a "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 sample Options Letter may be modified by an appointing power @ A B U V n o z { No Past Recorded Modules for Interactive Process. In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. This step is very important to the success of an accommodation. You can begin providing accommodations during the construction of a ramp if there are inaccessible areas. 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. Please read our Privacy Notice, Terms of Use, Cookie Notice, CCPA Notice, and Website Accessibility Policy. 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. But the FMLA doesnt provide paid leave, and employers say it can be difficult to administer. Please log in as a SHRM member. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. ' However, a recent federal court decision in Pennsylvania provides an example of the steps employers should follow after FMLA leave is used up to . Second, the employer must also have notice of the employees desire to obtain some type of accommodation. Failure to engage in the interactive process does not, in and of itself, result in liability under the ADA. However, they may be a useful tool for both employers and employees. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); 9o!S&GdpGm!xXrpyMjmuQw) 4=+Ah}S:2u ; McAfee & Taft A Professional Corporation. The use of these forms does not insulate a user from liability or create a presumption that discrimination did not occur. The ability of employers and their managerial staff to recognize requests is important. Navigating the New EU Unitary Patent, EEOC targeting discriminatory use of artificial intelligence, Court upholds firing of marijuana cardholders discharged after positive weed test, Deadline nears for complying with PUMP Acts expanded protections for nursing mothers in the workplace. $("span.current-site").html("SHRM China "); This is a request for a reasonable accommodation. Whether sending an email or letter, add a professional greeting that includes the person's name. Although this is a request for a change at work, his statement is insufficient to put the employer on notice that he is requesting reasonable accommodation. (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. Evaluate whether the employee can perform the job safely. Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. Assess the effectiveness of the accommodation(s) in enabling the employee to perform the essential functions of the job. In many instances, the appropriate accommodation is obvious and therefore it is not necessary to go through a step-by-step process. 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. The employer needs to know what limitations are interfering with job performance and what specific work tasks are at issue. NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. Notice may also come in the form of objective proof, such as sudden or increasing inability to perform job functions or other physical manifestations of symptoms that are readily observable to others in the workplace. Inform appropriate people in the department what employees restrictions are and that the employee cannot exceed them. If the accommodation involves an outside service, someone needs to make sure the service is provided promptly and effectively. Contact the Disability and Rehabilitation Consultant immediately in the event of performance or attendance problems. EEOC Informal Discussion Letter