New guidance: Hearing disabilities and the ADA

A new resource document from the Equal Employment Opportunity Commission (EEOC) provides valuable guidance relating to job applicants and employees with hearing disabilities.

The guidance explains how employers can steer clear of Americans with Disabilities Act (ADA) violations and offers tips on providing reasonable job accommodations. In addition, it warns against making stereotypical assumptions about people with hearing disabilities while addressing employer concerns relating to workplace safety.

“Employers have a legal responsibility to create fair workplaces for all employees and job applicants who need reasonable accommodations,” EEOC Chair Charlotte Burrows said in a release. Burrows added that the document “will help educate employers on those responsibilities and employees about their rights.”

What can employers ask – and when?

When it comes to asking applicants or employees disability-related questions, the answer changes depending on whether the questions are asked pre-offer; post-offer and preemployment; or during employment.

Before an offer is made, an employer cannot ask questions about an applicant’s hearing disability. This includes questions such as whether the applicant uses a hearing aid or has any condition that affects their hearing.

If an applicant has an obvious hearing impairment or has voluntarily disclosed the existence of one, employers can ask if an accommodation will be needed – but only if they reasonably believe an accommodation will be needed to complete the application process or do the job.

Things change after a job offer is made. At that point, employers can ask disability-related questions — as long as they do so for all applicants for the same type of job.

The rules change again for current employees, who can be subjected to medical inquiries when the employer reasonably believes that performance issues are disability-related.

Employers can also ask employees about their hearing if they reasonably believe they will be unable to safely perform the job’s essential functions.

Keep it confidential

Employers generally must keep confidential any medical information they learn about employees and job applicants.

There are exceptions. For example, disability-related information can be disclosed to supervisors and managers when it is needed to provide an accommodation or meet work restrictions. It can also be provided to first aid and safety personnel; to those investigating ADA compliance; and when needed for workers’ comp or insurance purposes.

They may not, however, tell inquiring co-workers that an individual with a hearing disability (or any disability) is receiving a reasonable accommodation.

How to accommodate

Potential accommodations for people with hearing disabilities vary widely.

Some more common examples:

• Sign-language interpreters
• Assistive technology, such as access to a video relay service, a hearing-aid compatible headset, appropriate emergency notification systems, hearing protection equipment, and assistive software
• Note-taking assistance, and
• Work-area adjustments, such as a desk away from a noisy area.

In addition, accommodations that may be appropriate for many other types of disabilities may be similarly appropriate for people with hearing disabilities. These include accommodation such as providing time off and reassigning employees to a vacant position.

Remember that as with all accommodation scenarios, an employee or applicant with a hearing disability does not have to use any “magic words” to ask for a reasonable accommodation. They only need to tell the employer that they need a work-related adjustment because they have an impairment. Once that happens, the duty to try to find an accommodation is triggered.

Addressing safety concerns

Of course, safety concerns can be legitimate. But the EEOC stresses that employers must be careful not to act based on myths, fears or stereotypes about hearing conditions when assessing whether a safety risk exists.

In deciding whether an individual’s hearing disability poses a direct threat such that it disqualifies them, employers must look at:

• The duration of the risk
• The nature and severity of the potential harm
• The likelihood that the harm will occur, and
• The imminence of the potential harm.

If another federal law bars employers from hiring a person with a hearing disability for a particular position, employers can refuse to hire these applicants without violating the ADA.

Finally, the document notes that the ADA bans all disability-based harassment, including harassment based on hearing disabilities.