Regulatory Update: EEOC Issues New Guidance on Hearing Disabilities
The Equal Employment Opportunity Commission (EEOC) has issued new employer guidance on how the Americans with Disabilities Act (ADA) applies to job applicants and employees who have hearing disabilities, with a few new wrinkles added.
“Employers have a legal responsibility to create fair workplaces for all employees and job applicants who need reasonable accommodations,” said EEOC Chair Charlotte A. Burrows. “The practical questions and answers and realistic scenarios in this updated document will help educate employers on those responsibilities and employees about their rights.”
In addition to adding information about discrimination against job applicants, the commission said the updated document provides new or updated examples that reflect available technologies. The EEOC’s new resource focuses on three areas:
• Obtaining and using medical information
• Reasonable accommodations for hearing disabilities
• Handling safety concerns.
“Individuals who are deaf, hard of hearing, or have other hearing conditions can perform successfully on the job and should not be denied opportunities because of stereotypical assumptions about their hearing,” the EEOC stressed.
The guidance seeks to clarify that discrimination may occur when employers act on unfounded assumptions that workers with hearing conditions will cause safety hazards, increase employment costs, or have difficulty communicating. The document also discusses issues surrounding harassment and retaliation that might occur.
As is the case in other employment issues involving the ADA, the ultimate standard of employer behavior involves what is considered a “reasonable accommodation” that can be provided to the employee without running the risk of creating an unreasonable burden on the part of a conscientious employer.
The ADA covers employment by private employers with 15 or more employees as well as state and local government employers. In addition, most states have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and can provide protections in addition to those available under the federal law.
Keep in mind that an employer is not allowed to ask about a job applicant’s medical condition or require an applicant to have a medical examination before it makes a conditional job offer. EEOC says this means that an employer cannot ask an applicant questions such as whether they had any medical procedures related to hearing (such as whether they have a cochlear implant); whether the applicant uses a hearing aid; or if they have any condition that affects their hearing.
Of course, an employer may ask questions pertaining to the applicant’s ability to perform the essential functions of the position, with or without reasonable accommodation. These could include whether they can respond quickly to instructions in a noisy, fast-paced work environment; if they have good communication skills; or whether they can meet legally mandated safety standards required to perform the job.
The ADA does not require applicants to disclose that they have or had a hearing disability or another disability unless they will need a reasonable accommodation for the application process (for example, a sign language interpreter). Sometimes, the decision to disclose depends on whether an individual will need a reasonable accommodation to perform the job.
This can include the need for specialized equipment, removal of a marginal function, or another type of job restructuring. A person with a hearing condition, however, may request an accommodation after becoming an employee even if they did not do so when applying for the job or after receiving the job offer, EEOC points out.
After Making a Job Offer
After a job offer is made, an employer may ask health- and disability-related questions or require a medical exam—as long as all of the applicants for the same type of job are treated equally. If an applicant voluntarily discloses a hearing-related disability, questions may be asked about how long the individual has had the condition; what hearing they have; specific hearing limitations; and what, if any, reasonable accommodations the applicant may need to perform the job.
The employer also may choose to send the applicant for a follow-up hearing or medical examination or ask the person to submit medical documentation answering questions specifically designed to assess their ability to perform the job’s functions safely.
Permissible follow-up questions at this stage differ from those at the pre-offer stage, when an employer is only allowed to ask an applicant who voluntarily discloses a disability or whose disability is obvious whether they need an accommodation.
EEOC says an employer may not withdraw an offer from an applicant with a hearing disability if the individual is able to perform the essential functions of a job, with or without reasonable accommodation, and without posing a direct threat (that is, a significant risk of substantial harm) to the health or safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation.
The commission warns that the ADA strictly limits the circumstances under which an employer may ask questions about an existing worker’s medical condition or require them to have a medical examination. Once an employee is on the job and working, actual performance is the best measure of ability to do the job, the EEOC holds.
“Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition,” the commission says.
At other times, an employer may ask for medical information when symptoms are observed, such as difficulty hearing. This also is the case when the employer receives reliable information from someone else (for example, a family member or coworker) indicating that the employee may have a medical condition that is causing problems with work performance.
Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer’s existing policies concerning performance, according to the EEOC.
An employer also may ask an employee about their hearing if the information is necessary to support a request for a reasonable accommodation requested because of hearing disability. This also is true when the information is needed to enable the employee to participate in a voluntary wellness program, or verify use of sick leave related to a hearing condition if employees are required to submit a doctor’s note to justify use of sick leave
How to Accommodate
What are considered reasonable accommodations vary depending on the needs of the individual with a disability. Not all applicants or employees with a hearing condition will need an accommodation or require the same accommodations. Examples of adaptive technology that may be deployed include:
• Access to a video relay service or video remote interpreting service using equipment such as a videophone, computer, laptop, tablet, or smartphone.
• A hearing aid-compatible telephone headset, a telephone amplifier, and/or adapters for using a phone with hearing aids or cochlear implants.
• Appropriate emergency notification systems (for example, strobe lighting on fire alarms or vibrating pagers).
• Enabling the streaming of sound directly from a device to hearing aids or cochlear implants.
• Utilizing accessibility features of mainstream technology (for example, using the captioning feature on virtual meeting platforms).
• A voice carry-over telephone, captioned telephone, text telephone, or TTY.
• Equipment used for hearing protection to block noise or to protect hearing function, including equipment that can be used with hearing aids. Assistive software or applications (for example, for automated captioning, voice recognition, videoconferencing or sound detection).
Don’t forget that an employer can get into serious trouble if you don’t keep employee information related to any medical condition strictly confidential. Under the following circumstances, however, an employer may disclose that an employee has a hearing condition to:
• Supervisors and managers, if needed to provide a reasonable accommodation or meet an employee’s work restrictions.
• First aid and safety personnel if an employee may need emergency treatment or require some other assistance at work.
• Individuals investigating compliance with the ADA and similar state and local laws.
• Where needed for workers’ compensation or insurance purposes (for example, to process a claim).
While you might find it hard to believe, the commission also reminds employers that they are not permitted to tell coworkers that an employee is receiving an ADA reasonable accommodation, which amounts to a disclosure that the employee has a disability. “Rather than disclosing that the employee is receiving a reasonable accommodation, the employer may find it helpful to point out that many employee issues are personal and focus on the importance of maintaining the privacy of all employees,” the EEOC advises.
