The Equal Employment Opportunity Commission (EEOC) recently updated its guidance regarding Hearing Disabilities in the Workplace and the Americans with Disabilities Act (ADA), and employers should take note and refresh their policies and practices accordingly.
“While familiar principles of disability accommodation law resonate throughout the guidance, the details and examples are a helpful resource for employers that are not familiar with the challenges and range of assistive options for those who qualify as hearing disabled,” says attorney Tracey I. Levy of Levy Employment Law LLC, who noted that she has a hearing disability in a recent letter to clients.
One of the things that the EEOC stresses is that an employee doesn’t have to be deaf to be described as suffering from hearing disabilities. People with a variety of hearing conditions may be considered to have ADA disabilities if they are substantially limited in hearing or another major life activity.
“From personal experience, the ability to discern spoken language can be significantly impacted even if an audiology report does not register as deafness,” Levy points out. “Hearing loss and conditions like tinnitus (ringing in the ear) and sensitivity to noise can impede the ability to engage in conversation at networking events, social functions, or other large gatherings or in loud workplaces.”
Where a hearing condition is not obvious, the EEOC guidance makes clear that an employer can ask for medical documentation, but only to confirm that a covered disability exists and what accommodations may be needed, not to ascertain the cause or nature of the impairment.
In general, the law precludes employers from asking employees about their medical conditions. However, the EEOC guidance notes that an exception exists if an employer knows an employee’s medical condition or has observed symptoms of a condition and reasonably believes the medical condition or those observed symptoms are causing performance problems.
In these situations, employers can choose to inquire further for purposes of discerning whether this particular employee may require a reasonable accommodation.
The EEOC offers the example of an employee who wears a hearing aid and had been a consistently good performer in an administrative position prior to being promoted to a new role that involves considerably more time on the phone. If the employee’s performance has declined because she is making many mistakes with customer orders she records over the phone, the employer can ask whether she has difficulty hearing on phone calls and ask whether she would benefit from an accommodation.
The employer could not ask those questions, however, if the performance issues the employee demonstrated were typographical errors, lateness, or other issues having nothing to do with hearing, Levy stresses.
Several of the EEOC’s illustrative examples make the point that accommodations need to enable the hearing-disabled employee to participate fully in the workplace. Accommodations like providing notes or the summary of a meeting when a deaf employee has requested a sign language interpreter would not be a reasonable alternative if the deaf employee is unable to ask questions and participate in discussions at the meeting.
Technology Advancements Help
Levy also emphasizes that technology advances have contributed substantially to improvements in the ease and capability of employees with these conditions, including services like video remote interpreting, and can facilitate participation in more cost-effective ways than was possible in years past.
There may be times when providing a sign language interpreter is a reasonable accommodation for an employee or group of employees who are hearing impaired. But not every hearing-impaired individual understands American Sign Language (ASL), particularly if the impairment developed later in life. Levy says that for some employers the cost of an interpreter may be prohibitive to the degree of presenting an undue hardship.
There are, however, a range of other, often less expensive accommodations that employers may consider for those with hearing disabilities, she adds, including:
• Bluetooth-enabled or other hearing aid or cochlear implant-compatible technology to connect to telephone headsets and sound systems.
• Non-auditory safety alerts, like strobe lighting or vibrating pagers for emergency notification systems.
• Other assistive software and technology, including video remote interpreting, automated captioning, telephone amplifiers or adapters, captioning features on virtual meeting platforms, voice carry-over/captioned or text telephones, and voice recognition or sound detection software.
• Equipment for hearing protection to block noise or protect hearing function.
• Assistive listening devices that translate voice into text and vice versa.
• Appropriate written memos and notes, especially for brief, simple or routine communications.
• Work area adjustments, such as away from a noisy area.
• Time off as needed for treatment or adaptive services.
• Altering marginal job functions.
• Reassignment to a vacant position.
Many accommodations that can be provided to a disabled employee, including those with hearing disabilities, involve little or no cost to the employer, Levy explains.
These include flexibility in seating or work location, left-sided vs. right-sided headsets for those with single-sided deafness, permission to access the closed captioning services on software like Zoom and now available on Apple’s iOS, and patience in being asked to repeat, write or text something that was not heard the first time, particularly when in a loud environment, can make an appreciable difference in enabling those with hearing disabilities to fully and successfully participate in the workplace.
Levy also warns that safety concerns should be based in fact, not assumptions. The EEOC cautions that employers may exclude an individual with a hearing disability from a job for safety reasons only when the individual poses a direct threat, meaning a significant risk of substantial harm that cannot be resolved through a reasonable accommodation.
“The examples offered by the EEOC reflect that sometimes presumed safety risks can be addressed with the addition of simple visual aids or by leveraging technology, such as a visual alert on a smartwatch or vibrating pager with a light signal,” Levy notes. “The solution may not be obvious to the employer, which is why consulting with the employee or a service like the Job Accommodation Network (JAN) can be helpful.”
The EEOC says that approximately 15% of American adults report some trouble hearing. “If you are not one of them or have not closely engaged with someone in that category, it can be difficult to understand the range of contexts in which hearing difficulties may be impacted, and also to know the options for addressing those difficulties,” Levy adds on a personal note. “Get advice and leverage the EEOC’s guidance and resources like JAN (which is free) for further information.”