EEOC Releases Comprehensive Guidance Regarding Job Applicants and Employees With Hearing Disabilities

On January 23, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document aimed at providing guidance on how the Americans with Disabilities Act (ADA) applies to job applicants and employees with hearing disabilities. The comprehensive document addresses (1) when an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures, (2) what types of reasonable accommodations applicants or employees with hearing disabilities may need, (3) how an employer should handle safety concerns about applicants and employees with hearing disabilities, and (4) how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.

When is a hearing impairment considered to be a disability under the ADA?

Individuals with hearing impairments may be considered “disabled” for purposes of the ADA if they have an “actual” disability, a “record of” a disability, or if they are “regarded as” being disabled.

• “Actual” disability. The individual is “substantially limited in hearing or another major life activity” (i.e., actual disability). Notably, the EEOC states that the fact that an individual uses any mitigating measures to assist with his or her hearing impairments (e.g., a hearing aid or cochlear implant) should not be taken into consideration for purposes of determining whether an actual disability exists.
• “Record of” disability. The individual has a “record of an impairment that substantially limited a major life activity in the past.” This may come into play “when the individual’s hearing has been corrected surgically.”
• “Regarded as” being disabled. The employer takes a prohibited action against an individual because of the individual’s hearing condition “or because the employer believes the individual has an impairment of hearing, other than an impairment that is not both transitory and minor.”

May an employer ask any questions related to a hearing disability?

An employer’s ability to ask questions relating to a disability (here, a hearing disability) depends on whether the individual is in the pre-offer, post-offer, or employment stage.

Job Applicants (Pre-offer)

Prior to receiving a job offer (i.e., when an individual is a job applicant), an employer may not ask questions about an applicant’s medical condition or require the applicant to undergo a medical examination. However, an employer may ask questions pertaining to the applicant’s ability to perform the essential functions of the position, with or without a reasonable accommodation. For example, an employer may ask: “Can you respond quickly to instructions in a noisy, fast-paced work environment?” “Do you have good communication skills?” “Can you meet the legally mandated safety standards required to perform the job?”

Before accepting a job, applicants are not required by the ADA “to disclose that they have or had a hearing disability or another disability unless they will need a reasonable accommodation for the application process (for example, a sign language interpreter).” (Emphasis in the original.) Even when an applicant’s hearing impairment is obvious or apparent, the employer generally may not ask about it directly unless “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.” (Emphasis in the original.) When in doubt, the employer may ask questions relating to the applicant’s ability to perform the essential functions of the job, with or without a reasonable accommodation.

Post-offer

Once an employer has extended a job offer, it “may ask questions about the applicant’s health … and may require a medical examination, as long as all applicants … are asked the same questions and are required to take the same examination.” After the initial inquiry (that is made to all prospective employees), the employer may follow up for more specific information relating to information that the individual disclosed. For example, if an individual discloses a hearing impairment after receiving an offer, the employer may ask questions about the impairment, any “reasonable accommodations” that may be required, and “may send the applicant for a follow-up hearing or medical examination … specifically designed to assess the applicant’s ability to perform the job’s functions safely.” The guidance also states than “[a]n employer may not withdraw an offer from an applicant with a hearing disability” if the individual discloses the disability but “is able to perform the essential functions of [the] job, with or without reasonable accommodation, and without posing a direct threat … to the health or safety of [himself or herself] or others.”

Employees

Though an employer’s ability to ask questions about a medical condition is strictly limited by the ADA, the employer may do so in certain situations:

• If the employee demonstrates performance issues that an employer “reasonably believes … are related to a medical condition”
• If the employer observes or “receive[s] reliable information from someone else … indicating that the employee may have a medical condition that is causing performance problems”
• If necessary “to support the employee’s request for a reasonable accommodation”
• “[T]o enable the employee to participate in a voluntary wellness program”
• “[T]o 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”

How should employers handle medical information received from applicants or employees?

Generally, employee and applicant medical information must be kept strictly confidential. However, several exceptions to this general rule exist, the main one allowing employers to share information with supervisors and managers “if necessary to provide a reasonable accommodation or meet an employee’s work restrictions.” Other exceptions involve sharing otherwise confidential medical information if the individual requires emergency treatment, when ADA compliance is being investigated, and “where needed for workers’ compensation or insurance purposes.”

Which reasonable accommodations may be appropriate for applicants or employees with hearing disabilities?

The EEOC has identified the following as possible reasonable accommodations for applicants or employees with hearing disabilities:

• “A sign language interpreter”
• Assistive technology including, but not limited to, “[a] hearing-aid compatible telephone headset, a telephone amplifier,” “[e]nabling the streaming of sound directly from a device to hearing aids or cochlear implants,” “[a]ssistive listening devices,” and “[a]ssistive software or applications”
• “Appropriate written memos and notes”
• “Communication access real-time translation (CART)”
• “Work area adjustments”
• “Time off in the form of accrued paid leave or unpaid leave if paid leave has been exhausted or is unavailable”
• “Altering an employee’s marginal (that is, non-essential) job functions”
• “Reassignment to a vacant position”
• “Other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities”

An employer is not required to provide an accommodation “if doing so would be an undue hardship,” meaning that it would “result in significant difficulty or expense.” Employers need not eliminate essential job functions in order to accommodate an employee or applicant, “[n]or do employers have to provide employees with personal use items, such as hearing aids or other devices that are used both on and off the job.”

Notably, the EEOC stated that the need for an accommodation during the application process and on the job should be evaluated separately. This means that if an applicant needs a reasonable accommodation in order to complete the application process, an employer must provide it even if it does not believe it will be able to provide the applicant with a reasonable accommodation on the job.

How should employers handle safety concerns regarding an individual with a hearing impairment?

The EEOC cautions that employers should “not … act on the basis of myths, fears, or stereotypes about hearing conditions”; rather, employers “should evaluate each individual on [the individual’s] skills, knowledge, experience, and how the hearing disability affects [the individual].” An employer may only “refuse to hire, terminate, or temporarily restrict the duties of [an individual] who has or had a hearing impairment … for safety reasons when the individual poses a “direct threat.” (Emphasis added.)“Direct threat” is defined as “a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation.” The guidance states that employers should evaluate the potential for a “direct threat” by considering “the duration of the risk,” “the nature and severity of the potential harm,” “the likelihood that the potential harm will occur,” and “the imminence of the potential harm.” The EEOC notes that “[t]he harm must be serious and likely to occur, not remote or speculative.” Additionally, “the employer must determine whether any reasonable accommodation would reduce or eliminate the risk.”

What additional measures should employers take?

In its guidance, the EEOC emphasizes that the ADA prohibits harassment or offensive conduct based on disability, including hearing-related disabilities, and other protected classes. The guidance provides several examples of ways employers can make clear that they will not tolerate harassment, such as by having strong written policies and procedures in place aimed at preventing or properly handling harassment or discrimination in the workplace. The guidance also encourages employers to conduct periodic trainings on the topic and advise employees to report any complaints or observations of harassment to management immediately. Lastly, the guidance recommends that employers thoroughly and promptly investigate reports of harassment and “take swift and appropriate corrective action” where needed.