EEOC Updates on How ADA Protects Job Applicants and Employees with Hearing Disabilities

The Equal Employment Opportunity Commission (EEOC) offered employers new guidance on how the ADA applies to job applicants and employees who have hearing disabilities. The EEOC’s new resource focuses on three areas: obtaining and using medical information, reasonable accommodations for hearing disabilities, and handling safety concerns. Here’s what employers need to know.

The Americans with Disabilities Act (ADA) bars discrimination against qualified individuals with disabilities. Hearing conditions can be a disability covered by the act. Some examples of hearing conditions include deafness, being hard of hearing, experiencing ringing in the ears, and having sensitivity to noise.

Obtaining and Using Medical Information

What employers can ask regarding disabilities and what information can be obtained depends on where in the employment process an employee or prospective employee is. Different rules apply at different stages.

• • Pre-Job Offer - No health-related questions can be asked, nor any medical exam required, prior to a conditional employment offer. Employers may ask questions related to an applicant’s ability to perform the essential functions of the job, such as whether the applicant:
    • Can respond quickly to instructions in a noisy, fast-paced work environment.
    • Has good communication skills.
    • Can meet legally mandated safety standards required to perform a job.

The prohibition on medical-related questions applies even if the disability is obvious or the applicant voluntarily discloses the disability.

An exception to this prohibition is, if the disability is obvious or has been voluntarily disclosed, and the employer reasonably believes that the applicant will require an accommodation to complete the application process or to perform the job, the employer may ask if an accommodation is needed and what type.

• • Post-Job Offer - Employers may ask health and disability-related questions or require a medical exam, as long as all applicants for the same type of job are treated equally. If an applicant voluntarily discloses a hearing-related disability after an offer is made, the employer may ask follow-up questions such as:
    • How long has the applicant had the condition?
    • What, if any, hearing does the applicant have?
    • What are the applicant’s specific hearing limitations?
    • What reasonable accommodations does the employee need to perform the job?

An employer may then send the applicant to a follow-up medical or hearing exam or request they submit medical documentation tailored specifically to determining whether the applicant can perform the essential functions of the job.

• • Employees – Generally, employers may not ask employees disability-related questions. However, 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, or when it has observed symptoms or received reliable information that the employee may have a medical condition that is causing performance problems.

An employer may ask specifically about an employee’s hearing condition:

• • When there is a reasonable belief that the employee will be unable to safely perform the essential functions of the job because of the condition, or to the extent the information is necessary to support the employee’s request for a reasonable accommodation.
  • To enable the employee to participate in a voluntary wellness program.
  • To verify the employee’s use of sick leave related to a hearing condition if the employer requires all employees to submit a doctor’s note to justify their use of sick leave.

Reasonable Accommodations

Some examples the EEOC gave of reasonable accommodations for employees with hearing disabilities are:

• • Sign language interpreter
  • Assistive technology
  • Assistive listening devices (ALDs)
  • Appropriate written memos and notes (especially used for brief, simple or routine communications)
  • Note-taking assistance for those using Communication Access Realtime Translation (CART) services or sign language interpretation
  • Work area adjustments (for example, a desk away from a noisy area or near an emergency alarm with strobe lighting)
  • Time off in the form of accrued paid leave or unpaid leave if paid leave has been exhausted or is unavailable
  • Altering an employee’s non-essential job functions
  • Reassignment to a vacant position

Safety Concerns

When it comes to safety concerns, it is important that an employer not act on the basis of myths, fears or stereotypes about hearing conditions. An employer only may exclude an individual with a hearing disability from a job for safety reasons when the individual poses a “direct threat.” A “direct threat” is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation. An individualized “direct threat” assessment should be conducted that is based on reasonable medical judgment that relies on the most current medical knowledge and the best available objective evidence. In making this assessment, four factors must be considered:

(1) The duration of the risk

(2) The nature and severity of the potential harm

(3) The likelihood that the potential harm will occur

(4) The imminence of the potential harm

The harm must be serious and likely to occur, not remote or speculative. The employer must determine whether any reasonable accommodation would reduce or eliminate the risk.

Please contact Mallory Bland or any member of Phelps' Labor and Employment team with questions or for compliance advice and guidance.