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Hearing
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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 func- tions of the job because of it. Further, an employer may ask an employee about their hearing to the extent neces- sary to support the employee’s request for accommodations, to enable the employee to participate in a volun-
tary 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 rea- sonable accommodations that could be suggested or employed for hearing- disabled individuals. This non-exhaus- tive list includes a sign-language inter- preter 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 func- tions, and reassignment to a vacant position.
Employers should remember that there is no magic word for requesting a reasonable accommodation; an indi- vidual simply has to tell the employer that he or she needs an adjustment or change at work because of an impair- ment. Employers do not have to pro- vide reasonable accommodations if doing so would be an undue hardship, meaning that providing reasonable accommodation would result in signif- icant difficulty or expense. Additional- ly, employers do not have to eliminate an essential function of a job, tolerate poor performance, or excuse viola- tions of conduct to provide reasonable accommodations.
There is another consideration
for employees with hearing disabili- ties. 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 per- form the essential functions of the job.
Considerations should include the duration of the risk, the nature and severity of potential harm, the likeli- hood 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 specula- tive. Finally, the employer must consid- er whether any reasonable accommo- dations, 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 accom- modations in general, it is prudent to contact legal counsel in order to avoid any potential liability. BW
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.
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