By Trevor Brice, Esq.
On Jan. 24, the Equal Employment Opportunity Commission (EEOC) released new guidance for employers on how and when to accommodate applicants and employees with hearing disabilities.
The guidance covers when an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures of a condition, what types of reasonable accommodations applicants or employees with hearing disabilities may need, how an employer should handle safety concerns about applicants and employees with hearing disabilities, and how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.
This guidance is an update to the original guidance that the EEOC released regarding accommodations for deafness and hearing disabilities in the workplace on May 7, 2014.
Questioning Employees and Applicants on Hearing Disabilities
In general, before offering an individual a job, avoid asking the applicant about hearing disabilities or any disabilities or requiring an applicant to have a medical examination before a conditional job offer. However, the limited exception to this general rule is if an applicant has an obvious impairment or has voluntarily disclosed 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.
If this is the case, the employer may ask if the applicant will need an accommodation and what type. However, as a best practice in the pre-offer stage, it is prudent for an employer to stick to questions about the applicant’s ability to perform the position’s essential functions, with or without reasonable accommodation, such as whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment.
After making a conditional job offer, an employer may ask questions about the applicant’s health (including questions about an applicant’s disability, including deafness and hearing disabilities) and may require a medical examination as long as all applicants for the same type of job are subjected to the same requirement.
For current employees, an employer may ask disability-related questions or require an employee to have a medical examination when the employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the performance problems are related to a medical condition. However, the EEOC notes that employers should take precautions in this situation, as performance problems often are unrelated to a medical condition, and the problems should be handled in accordance with the employer’s existing policies regarding performance.
Regarding hearing conditions for current employees, an employer also may ask an employee about a hearing condition when it has a reasonable belief that the employee will be unable to safely perform the essential functions of the job because of it. Further, an employer may ask an employee about their hearing to the extent necessary to support the employee’s request for accommodations, to enable the employee to participate in a voluntary wellness program, or 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.
Possible Accommodations and Safety-Related Exclusions
The EEOC suggests several reasonable accommodations that could be suggested or employed for hearing-disabled individuals. This non-exhaustive list includes a sign-language interpreter for use in interviews or during employment, assistive technology (including video relay or video remote interpreting services, hearing-aid-compatible telephone headsets, etc.), appropriate written memos and notes, note-taking assistance, work-area adjustments (moving a desk away from a noisy area, for example), time off, altering non-essential job functions, and reassignment to a vacant position.
Employers should remember that there is no magic word for requesting a reasonable accommodation; an individual simply has to tell the employer that he or she needs an adjustment or change at work because of an impairment. Employers do not have to provide reasonable accommodations if doing so would be an undue hardship, meaning that providing reasonable accommodation would result in significant difficulty or expense. Additionally, employers do not have to eliminate an essential function of a job, tolerate poor performance, or excuse violations of conduct to provide reasonable accommodations.
There is another consideration for employees with hearing disabilities. Employers may also exclude an individual with a hearing disability from a job for safety reasons when the individual poses a direct threat, which is defined as a significant risk of substantial harm to the individual or others because of a disability that cannot be eliminated or reduced through reasonable accommodations. If an employer believes there is such a direct threat, the employer should conduct an individualized assessment of the individual’s present ability to perform the essential functions of the job.
Considerations should include the duration of the risk, the nature and severity of potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. The harm must be serious and likely to occur, not remote and speculative. Finally, the employer must consider whether any reasonable accommodations, such as the ones above, would reduce or eliminate the risk of direct threat. The EEOC provides examples of how this balancing test should work.
If employers have questions relating to this balancing test, or regarding the new guidance for hearing disabilities or disabilities and reasonable accommodations in general, it is prudent to contact legal counsel in order to avoid any potential liability.
Trevor Brice is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.