The Equal Employment Opportunity Commission (EEOC) issued new technical assistance, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act,” addressing how the Americans with Disabilities Act (ADA) applies to job applicants and employees with hearing disabilities. The series of questions and answers and example workplace scenarios involving individuals with hearing impairments is not binding law but reflects the EEOC’s position on topics informative for all employers navigating their obligations under the ADA related to any disability. The technical assistance highlights the uniqueness of hearing conditions, and how they may trigger ADA obligations. The EEOC identifies potential accommodations for hearing conditions, such as use of a sign language interpreter, assistive technology, assistive listening devices, augmentative communication devices, and translation tools.
The EEOC also addresses important distinctions in permissible inquiries and examinations depending on the individual’s stage of employment (pre-offer, post conditional job offer, and employment). At the pre-offer phase, employers are not permitted to request medical information or conduct a medical exam on job applicants. According to the EEOC, the only exception is if the “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.” In that case, the employer may ask whether the applicant may need an accommodation and what type. Job applicants are not required to disclose hearing or other disabilities unless they will need a reasonable accommodation for the application process.
During the post conditional job offer phase the scope of permissible inquiries and examinations is significantly broader. If the applicant discloses a hearing condition post conditional job offer, an employer may request additional information, including what hearing limitations the applicant experiences and what, if any, reasonable accommodations would allow the individual to perform the job.
After employment begins, additional inquiries are permissible, the EEOC explains. When performance concerns arise, employers may ask questions about an employee’s medical condition or require medical exams only when the employer has reason to believe that the performance issues are related to a medical condition.
Like when addressing other disabilities, employers can ask about hearing conditions if the information is needed to approve sick leave (if all employees are required to substantiate their use of sick leave), process a reasonable accommodation, or allow participation in a wellness program.
The EEOC technical assistance also discusses how employers can address safety concerns. The EEOC’s position is that employers may exclude individuals with hearing or other disabilities from a job for safety reasons only when the individual poses a direct threat to the employee, co-workers or others. If an employer reasonably believes the employee cannot safely perform the essential functions of the job (because of a hearing or other impairment), the employer may conduct a direct threat analysis of an individual’s present ability to safely perform the essential functions of the job.
It is important to also keep in mind any state or local laws that may be more restrictive, such as California. Jackson Lewis attorneys are available to help employers determine what can be asked in the various phases of employment as well as with compliance issues in light of the new technical assistance and any relevant state law.