Employees with disabilities have the right to be free from discrimination or harassment and also have the right to a reasonable accommodation for their disabilities under the Americans with Disabilities Act, which covers employers with 15 or more workers.
In 2021, Virginia passed similar protections for people working for an employer of six employees and up.
The Equal Employment Opportunity Commission recently issued new guidance specifically addressing the rights of employees with hearing conditions and the impact of the ADA, noting that approximately 15% of American adults report some trouble hearing.
As explained by the EEOC: “Individuals who are deaf, hard of hearing, or have other hearing conditions can perform successfully on the job and, under the ADA, should not be denied opportunities because of stereotypical assumptions about those conditions. Some employers assume incorrectly that workers with hearing conditions will cause safety hazards, increase employment costs, or have difficulty communicating in fast-paced environments. In reality, with or without reasonable accommodation, individuals with hearing conditions can be effective and safe workers.”
In the guidance, the EEOC provides specific case studies to explain the employer’s obligations under the ADA for staff with hearing disabilities. Although the guidance is directed at hearing disabilities, it contains excellent advice for employers on making sure they comply with the ADA more broadly.
ADA protections apply not only when an individual becomes an employee, but also during the job application process. Prior to an offer of employment, an employer is prohibited from asking a job applicant about any disabilities, including whether the person has a hearing condition. The employer may ask questions pertaining to the applicant’s ability to perform the job’s essential functions with or without a reasonable accommodation, including asking “whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment; whether the applicant has good communication skills; or whether the applicant can meet legally mandated safety standards required to perform a job,” according to the EEOC.
An applicant is not required to disclose a current or past disability before accepting a job offer unless the person requires a reasonable accommodation during the application process itself (for example, a sign language interpreter).
If an applicant’s disability is obvious, or the applicant discloses the disability during the application process, the employer may only inquire about the condition if the employer reasonably thinks that the applicant will require an accommodation to complete the application process, or to perform the job because of the condition.
As a practical matter, these types of inquiries are best left to human resources, not interviewing managers. This is a tricky area where confusion and misunderstandings can occur.
After a conditional job offer is made, some health-related questions are permissible can be asked, and those are outlined in the guidance.
Once an individual becomes an employee, the “ADA strictly limits the circumstances under which an employer may ask questions about an employee’s medical condition or require the employee to have a medical examination. Once an employee is on the job, actual performance is the best measure of ability to do the job,” according to the EEOC.
Disability-related questions may be asked only if the employer has already been made aware of an employee’s medical condition, and then has observed performance problems and reasonably thinks the issues are related to the medical condition. “Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer’s existing policies concerning performance,” the EEOC said.
The EEOC explains that an employer may ask an employee about a hearing condition when there is a reasonable belief that the employee might be unable to safely perform the essential functions of a job because of the condition, or to support the employee’s request for reasonable accommodation, to enable the employee to participate in a voluntary wellness program, or to verify the employees’ use of sick leave, so long as this is required of all similarly situated employees.
Information about an employee’s medical condition should be kept confidential and maintained in a separate file from the personnel file.
Employers cannot disclose that an employee is receiving a reasonable accommodation to co-workers. If co-workers ask why an employee is receiving something that is generally not permitted (such as a modified work schedule), employers should respond by saying: “Many employee issues are personal and focus on the importance of maintaining the privacy of all employees.”
The EEOC also notes that employers can avoid these types of questions by training employees on the requirements of equal employment laws, including the ADA: “This kind of proactive approach may lead to fewer questions from employees who misperceive co-worker accommodations as ‘special treatment.’”
In a future column, I will discuss the reasonable accommodations considerations.
The guidance is also located at EEOC.gov.