February 1, 2023 – Hearing impairment affects approximately 15% of adults. And while it might not be the first thing that comes to mind when you think about workplace description, it’s become a recent hot topic for the EEOC.
Last Tuesday, the United States Equal Employment Opportunity Commission (EEOC) released updated compliance guidelines on how the Americans with Disabilities Act (ADA) applies to employees and job applicants with hearing disabilities. This updated guidance came shortly after two settlements the EEOC settled earlier in the month on behalf of hearing-impaired individuals.
Here are some of the key takeaways from the updated guidance:
Hearing “Disability” under the ADA
Under the ADA, the definition of “disability” is interpreted broadly in favor of expansive coverage. The updated guidelines state that individuals who experience the following hearing conditions may be covered:
- Being hard of hearing
- Ringing in the ears
- Sensitivity to noise.
If a person can show that they are “substantially limited in hearing or another major life activity,” they’re determined to have an “actual disability” under the ADA. This determination must not consider the availability or use of any mitigating measures (ex., Hearing aid, cochlear implant, etc.).
Individuals may also be covered by the ADA “if they have a record of an impairment that substantially limited a major life activity in the past” (ex., an individual whose hearing has been surgically corrected). Lastly, individuals must be covered “If an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of a hearing condition or because the employer believes the individual has an impairment of hearing, other than an impairment that is not both transitory and minor.”
Best Practices for Employers
The guidance also provides the following direction for employers who suspect an applicant or employee may have a hearing impairment:
Employers may not ask questions about an applicant’s medical condition (ex: asking the applicant if they use a hearing aid) or require them to have a medical exam before making a conditional offer of employment.
The guidance stresses that the ADA doesn’t require applicants to disclose that they have or have had a hearing disability before accepting a job offer unless the applicant requires reasonable accommodation for the application process.
However, employers are permitted to ask questions regarding the applicant’s ability to perform essential functions of the position, with or without reasonable accommodation. For example, asking whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment.
Likewise, the guidance explains that “if an applicant has an obvious impairment or has voluntarily disclosed the existence of an impairment and the employer reasonably believes that the applicant will require an accommodation to complete the application process or to perform the job because of the condition, the employer may ask whether the applicant will need an accommodation and what type.”
After they make a job offer, an employer can inquire about the applicant’s health” (including the existence/nature of a disability). They also “may require a medical examination” on an unprompted or affirmative basis as long as all applicants for the same job type are required to answer the same questions and take the same examination.
The guidance states that if an applicant discloses a hearing condition after receiving a conditional offer, employers may then ask additional questions, such as:
- How long the individual has had the condition
- What, if any, hearing the applicant has
- What specific hearing limitations the individual experiences
Employers may also request that the applicant undergo a follow-up medical examination or submit medical documentation designed to assess their ability to perform the job’s functions safely.
The guidance also clearly specifies that an employer may not withdraw a job offer if the individual can perform the essential functions of a job, with or without reasonable accommodation, without posing a threat of substantial harm to the health or safety of themselves or other employees.
The ADA limits the circumstances under which an employer may ask questions about a current employee’s medical condition or require a medical examination. It’s generally acceptable for an employer to ask disability-related questions or require a medical exam when they know about an employee’s medical condition, have witnessed performance problems, and have a reasonable belief that the problems are related to a medical condition.
According to the updated guidance, it’s appropriate for an employer to ask an existing employee about a hearing condition under the following circumstances:
- The employer has a reasonable belief that the employee will be unable to safely perform essential functions of the job because of the condition;
- To support the employee’s request for a reasonable accommodation;
- To allow the employee to participate in a voluntary wellness program; or
- Verify the employee’s use of sick leave related to a hearing condition
Reasonable Accommodations for Applicants & Employees
The guidance specifies that under the ADA, employers are required to provide reasonable accommodations to enable applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship.
The guidance recommends employers ask the employee requesting accommodation what’s needed to help them do their job.
A few examples of some reasonable accommodation include:
- a sign language interpreter;
- assistive technology including, but not limited to, hearing-aid compatible headsets, hearing protection equipment, captioning on virtual meeting platforms, video remote interpreting services, assistive listening devices (ALDs), and appropriate emergency notification systems;
- Note=taking assistance
- Work area adjustment
- Time off
- Altering an employee’s non-essential job functions.
The guidance restates that an employer is not obligated to provide accommodation if doing so would pose an “undue hardship,” meaning the accommodation would require significant difficulty or expense. Employers are not required to provide the employee’s first choice of reasonable accommodation. They may also opt to provide less costly or easier accommodation if it meets the employee’s needs.
Moreover, an employer is not required to eliminate an essential job function as a reasonable accommodation, tolerate sub-par performance, or excuse conduct violations to rules that are applied consistently to all employees.
Addressing Safety Concerns
The guidance advises employers not to act on fears or stereotypes about hearing conditions and instead evaluate an individual on “skills, knowledge, experience, and how the hearing condition affects the individual.”
According to the guidance, an individual with a hearing disability may only be excluded from a job for safety reasons when they pose a “direct threat.” The ADA defines a “direct threat” as a “significant risk of substantial harm to the health or safety of that employee or others, which cannot be eliminated or reduced by a reasonable accommodation.
For More Information
This article only provides some main highlights of the EEOC’s updated guidance. It is for informational purposes and is not intended as legal advice. Each case depends on unique facts and circumstances, so please contact a legal professional if you have any questions about accommodating hearing-impaired applicants or employees in your organization.
You can access the complete guidance here on the EEOC’s official website.