The EEOC Updates Its Resource Document for Hearing Disabilities in the Workplace

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The Equal Employment Opportunity Commission has a series of Q&A documents addressing particular disabilities in the workplace, one of which is an updated Hearing Disabilities in the Workplace and the Americans with Disabilities Act. The document explains the following:

  • When an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures. The resource makes the following points:
    • Employers may not ask whether a job applicant has a hearing condition prior to making a job offer. They may ask questions related to the applicant’s ability to perform the essential functions of the position, with or without reasonable accommodation, such as whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment or whether they can meet legally mandated safety standards.
    • Applicants are not required to disclose their hearing (or any other) disability prior to accepting a job offer, unless they need a reasonable accommodation for the application process (like a sign language interpreter). They may request accommodations after becoming employed.
    • An employer may not ask questions about an obvious or voluntarily-disclosed hearing condition, unless it reasonably believes the applicant will require an accommodation for the application process or to perform the job. If so, the employer may ask whether the applicant will need an accommodation and what type.
    • After an offer of employment is made, an employer may ask questions about an applicant’s health, including about any hearing disability, and require a medical examination as long as it does so for all applicants for the same type of job. It may follow up on any responses, such as by asking: how long the individual has had the hearing condition; what, if any, hearing the applicant has; what specific hearing limitations the individual experiences; and what, if any, reasonable accommodations the applicant may need to perform the job. The employer may withdraw its offer only if the applicant is unable to perform the essential functions of the job or poses a direct threat to themselves or others that cannot be eliminated or reduced with a reasonable accommodation.
    • An employer may ask an employee about a hearing condition or require a medical examination when it reasonably believes the condition (whether reported or observed) is causing performance problems or an inability to safely perform the essential functions of the job.
    • Employers should keep medical information confidential, and may not share with co-workers that an employee is receiving an accommodation.
  • What types of reasonable accommodations applicants or employees with hearing disabilities may need.
    • The resource provides a list of possible accommodations, including: a sign language interpreter; assistive technology (e.g. video relay service, hearing-aid-compatible devices, amplifiers, vibrating/strobe lighting for notification systems, close captioning, communication access real-time translation (CART) devices, etc.); written memos and notes; note-taking assistance; work area adjustments (e.g. being away from noisy areas, close to alarms with strobe lighting); leave; changing marginal job functions; and reassignment to a vacant position.
    • If the hearing condition is not obvious, the employer may request reasonable documentation about how the condition limits major life activities and why a reasonable accommodation is needed.
    • Employers do not have to grant accommodations that pose an undue hardship, and they do not have to eliminate an essential function of the job, tolerate sub-standard performance, or excuse conduct violations that are job-related, consistent with business necessity and applied consistently.
    • If more than one accommodation would be effective, the employer may choose the accommodation.
    • An employer must provide a reasonable accommodation to an applicant during the application process even if it believes that it will be unable to provide a reasonable accommodation on the job.
    • In addition to providing reasonable accommodations to enable employees to perform the essential functions of the job, employers must also provide them to enable employees to enjoy the benefits and privileges of employment, including access to facilities, access to information communicated in the workplace, and the opportunity to participate in training and social events.
  • How an employer should handle safety concerns about applicants and employees with hearing disabilities.
    • Employers may only exclude an individual with a hearing disability from a job (i.e. refuse to hire, terminate, or temporarily restrict duties) for safety reasons when the employee poses a direct threat. This is a significant risk of substantial harm to the employee or others that cannot be reduced or eliminated through a reasonable accommodation.
    • The employer must conduct an individualized analysis that is based on reasonable medical judgment that relies on current medical knowledge and/or the best available objective evidence, considering: the duration of the risk; the nature and severity of the potential harm; the likelihood of occurrence; and the imminence of the potential harm. It cannot be remote or speculative, and must take into account any reasonable accommodations.
  • How an employer can ensure that no employee is harassed because of a hearing disability or any other disability.
    • The employer should make clear that it will not tolerate harassment based on disability or any other protected basis, which can be done through a written policy, staff meetings, and periodic training.
    • The employer must also respond promptly and effectively to any complaints of harassment.