h\ CJ Trautman v. Time Warner Cable Texas LLC, 5th Cir., No. 3 0 obj However, the employer gets to choose among effective options and can choose, for example, the lowest cost accommodation. 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). ta SKN 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. 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. Sometimes, however, the employer must initiate the interactive process without receiving a request for accommodation from the employee. endobj The request can also come from someone other than the employee. A human resources assistant was working with an electrician who needed accommodations related to seizures. ", 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. Finally, the employee says, "I'm really having trouble getting out of bed in the morning. As a result, the company approved the plaintiff's use of one hour of FMLA leave per week for a period of six months. Sometimes the supervisor just doesn't like the employee and doesn't want to help the employee,"he said. There areperksto creating a company culture that welcomes employees with disabilities. + : 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. The plaintiff filed suit, alleging discrimination and failure to accommodate under the ADA, as well as retaliation under the FMLA. hn UVmH nH u hn jD hn U Together you can discuss the potential impact of the accommodations. This is an area where difficulties often arise, as this process imposes duties on both the employer and the employee. Welcome to the newest section of our site - Talent Acquisition! Example D: An employee tells his supervisor that he would like a new chair because his present one is uncomfortable. Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff. So it's important to note that your employee's request doesn't have to be in writing. Using the Interactive Process to Reach a Reasonable Accommodation. 4 0 obj Have employee sign the Medical Release Form (Figure 5) and provide the job description that lists the essential job duties of the position. Please log in as a SHRM member. 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. This is considered an accommodation request. "Employers need only enough to show (1) that theres a disability, and (2) the employee needs an accommodation." 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. The sample policy, written by a law firm, notes that it is intended to aid employers in meeting their obligations under the Americans with Disabilities Act (ADA), as amended, and states that the accompanying sample forms are for "informational, educational, and/or training purposes only." But this all counts as the interactive process. "You rarely see an . Phrases like reasonable accommodation, Americans with Disabilities Act, or disability aren't necessary. 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. Remember when consulting with outside resources, employers must comply with the confidentiality rules of the ADA. But Fram also advises documenting the following: If there isnt a quick fix, Fram said, then the formal ADA process should started "not by supervisors, but by HR or legal. var currentLocation = getCookie("SHRM_Core_CurrentUser_LocationID"); 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. This step is very important to the success of an accommodation. Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee. Topics covered: HR management, compensation & benefits, development, HR tech, recruiting and much more. 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 " Following the birth of her child in December 2013, the plaintiff took 12 weeks of Family and Medical Leave Act (FMLA) leave. But, if you have an employee request a new chair because its uncomfortable, it wouldnt be a request for reasonable accommodations. Circumstances or the effectiveness of accommodations can change over time. " "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.". Titled " The Zappos Culture Book ," this handbook highlights the company's dedication to workplace culture. Should an Accommodation Request Automatically Trigger FMLA? First, the employer must have notice that the employee has a disability. Notice provided to supervisors or managers will be imputed to the employer. 184 0 obj <> endobj For additional information about the interactive process, contact JAN directly to speak with a consultant or visit AskJAN.org. 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. An employer also cannot ignore these things simply because an employee has been cleared to return to work with or without restrictions. 0 "Thats what courts will look at: [whether there was] a thorough, fair effort to communicate and find an accommodation. 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. After complaining to her supervisor, the supervisor talked with HR. The Americans with Disabilities Act (ADA) requires covered employers to provide effective, reasonable accommodations for employees with disabilities. 2 0 obj Because changes occur, employers may need to periodically check on the ongoing effectiveness of accommodations. The interactive process will look different for everyone. This documentation may also include the medical practitioners suggestions about potential accommodations. When the need isn't obvious, more information will be helpful when discussing accommodations. The Central Services teams provide critical HR-related services to nearly all of the Berkeley campus, including records management and visa documentation. o @ 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. The point of the process is to remove barriers that keep people from performing jobs that they could do with some form of accommodation. 18-50053 (Dec. 12, 2018). 1 0 obj Remember to only ask for the necessary medical information. 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. For example, if an employee who recently started using a wheelchair indicates that he needs a ramp to get into the workplace, the disability and need for accommodation are obvious. ", "If youre trying to determine whether an accommodation will work, good documentation and particularly a good and accurate job description"are key, said Sencenbaugh. Make copies of both forms and file in Employee Step 3: Determine if the Accommodation Requested is However, when an accommodation is not obvious, an appropriate accommodation is best determined through a flexible, interactive process. 3 0 obj The sample Options Letter may be modified by an appointing power 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"); hn CJ ) $ % A B c ) * 6 gd] F^F 8&#$$d &d N P )#P &#$$d &d N P a&#$-D(M You dont want the front-line supervisor feeling like he needs to answer this question,"Schwarz said, and "it's not realistic that every manager/supervisor will become an expert in the interactive process. This notice does not need to disclose the employees specific condition. Keep your message as short as possible. If equipment is involved in the accommodation, someone may need to be assigned to perform maintenance or upgrades as needed. Also, employers "should not be getting periodic updates when the initial documentation states that the condition is not going to change. }); if($('.container-footer').length > 1){ 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. 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. % This area cover the performance management review program 'Achieve Together' and the Foundational Skills program. If an accommodation is not considered reasonable, refer to Sections IV and V below. Please confirm that you want to proceed with deleting bookmark. 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. Provide employee with Letter regarding Interactive Process which includes deadlines for paperwork. That there was followup, but that it stayed away from medical details. The ADA requires an "interactive process" between a disabled employee and her employer in the search for a reasonable accommodation. (Supervisors should stay out of medical details as much as possible, Fram said.). 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. 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 . When in doubt, ask for clarification on the request and why. Gain the intel you need now to successfully anticipate and navigate employment laws, stay compliant and mitigate legal risks. By using this site, you accept and agree to be bound by these terms. 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. Communication is especially important if youve provided any assistive technology or equipment. Keep up with the story. That the supervisor didn't ask anything medical. As part of this assessment process, the ADA requires that an employer engage in a timely, good-faith and meaningful interactive discussion with the employee. This is the time to brainstorm and consider what might work. V. If an Employee Declines an Offer of Accommodation, Procedure 36: Classification of Positions, Procedure 60: Layoff and Reduction in Time from Professional and Support Staff Career Positions, Procedure 84: Accommodations for Nursing Mothers, Reasonable Accommodation and the Interactive Process, Family and Medical Leaves of Absence (FMLA/CFRA/PDL), Berkeley Campus Policy/Procedure for Medical Separation, Procedure 84: Accommodations for Nursing Mothers.
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