NOTE: These procedures supplement relevant personnel policies and collective bargaining agreements, and should be read in conjunction with those provisions. 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.
Decision-making authority: Department head or designee.
Resources: Vocational Rehabilitation Counselor, Employee Relations Consultant, Department Human Resources Manager, Employment Analyst, Benefits staff.
I. Reasonable Accommodation
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. This includes efforts at reasonable accommodation that will allow the employee to perform the essential assigned duties of her/his position. The campus will explore reasonable accommodation options when an employee requests accommodation, or there is evidence that an employee may need accommodation due to a covered disability. Accommodation options will be considered in discussions with the employee.
II. Using the Interactive Process to Reach a Reasonable Accommodation
The Interactive Process is the way in which employees, supervisors, and their departments arrive at a reasonable accommodation. The law requires that employees and employers engage in the Interactive Process.
The Interactive Process can begin in a number of ways. However, unless the disability or the need for accommodation is obvious, it is the responsibility of the employee to inform the supervisor that an accommodation is needed in order to perform the essential job functions, or to receive equal benefits and privileges of employment. The employee does not have to formally notify the supervisor or department in writing. 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. When the disability or the need for accommodation is obvious, the supervisor should inquire whether the employee has a need for assistance.
An employee should not be asked whether s/he has a disability or any other question about his/her medical condition. 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.
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).
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.
Upon learning that the employee may need an accommodation, the supervisor should review job functions and qualifications for the position held by the employee.
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 employee’s preferences with regard to accommodations. The supervisor may request that the employee provide written documentation from a licensed medical practitioner, specifying the employee’s functional limitations as they pertain to the job, without providing diagnostic information. This documentation may also include the medical practitioner’s suggestions about potential accommodations. 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.
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. This agreement should be documented.
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.
III. If a Disability Does Not Allow an Employee to Perform One or More Essential Job Functions
- 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. This includes:
- Evaluating the employee's functional abilities and limitations;
- Analyzing the job requirements; and
- Exploring options available for an accommodation.
- The purpose of an accommodation is to enable the employee to perform the essential functions of the job. 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;
- Restructuring the job;
- Modifying work schedules;
- Acquiring or modifying equipment or devices;
- Providing qualified readers or interpreters; and
- Reviewing current vacancies within the department.
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. A Transfer Search may be another option. A Transfer Search is a process that may be available to employees who cannot perform the essential functions of their own position for an extended period of time, but are able to work in other jobs. A Transfer Search, if appropriate, is a continuation of the Interactive Process. For more information on Reasonable Accommodation and the Interactive Process, please see PPSM Policy 81 and relevant collective bargaining agreements.
In evaluating the reasonableness of an accommodation, a supervisor and Department should consider a range of issues. The following list provides some guidelines.
- Take the employee's expressed preferences into consideration.
- Evaluate whether the employee can perform the job safely.
- Assess the effectiveness of the accommodation(s) in enabling the employee to perform the essential functions of the job.
- 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 nature of the accommodation;
- The overall financial resources of the UC system;
- The impact of the accommodation on campus operations.
The Department should consult with Vocational Rehabilitation, and Employee Relations throughout the accommodation evaluation process.
- If a Department determines that an employee-requested accommodation is reasonable, the accommodation should be implemented as soon as possible. If an accommodation is not considered reasonable, refer to Sections IV and V below.
The Supervisor and Department Human Resources Manager should review any accommodation that is adopted with the employee and with other offices as appropriate, such as Disability Case Management and Employee Relations.
It is important to understand that engaging in the Interactive Process and deciding on a Reasonable Accommodation(s) is an on-going process. What may be an appropriate accommodation at one point in time may need to be reassessed if:
- The original accommodation was a "transitional accommodation," that is it was intended for a specifically defined purpose and time period has elapsed;
- The position duties change;
- The environment changes;
- The employee indicates that a new accommodation may be necessary; or
- Other factors suggest that a new accommodation is needed and it is time to re-initiate the Interactive Process.
IV. If a Department Decides that the Proposed Accommodation(s) is Unreasonable
A Department should consider the factors listed in Section III. when deciding on whether a suggested accommodation is unreasonable or presents an undue hardship. 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.
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.
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. Please see Personnel Policies for Staff Members (PPSM), the Berkeley PPSM Implementing Procedures, and appropriate collective bargaining agreements for information on this process.
V. If an Employee Declines an Offer of Accommodation
- 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.
- 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. If the employee is not eligible for (or chooses not to select) medical separation, the employee may be involuntarily terminated for non-performance. [See Berkeley Campus Policy/Procedure for Medical Separation.]