EEOC Issues Guidance On Hearing Disabilities in the Workplace

Kollman & Saucier
Kollman & Saucier

The Equal Employment Opportunity Commission (EEOC) has issued guidance called “Hearing Disabilities in the Workplace and the Americans with Disabilities Act.”  The resource addresses:

  • when an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures;
  • what types of reasonable accommodations applicants or employees with hearing disabilities may need;
  • how an employer should handle safety concerns about applicants and employees with hearing disabilities; and
  • how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.

The guidance provides useful questions and answers, even if much of the content is not groundbreaking.  The guidance, for example, identifies potential reasonable accommodations for applicants and employees with hearing disabilities, including:  a sign language interpreter, assistive technology, assistive listening devices, written documentation, note-taking assistance, work area adjustments, leave, altering marginal job functions, reassignment (typically the accommodation of last resort), and other modifications or adjustments that allow a qualified applicant or employee with a disability to enjoy equal employment opportunities.

The EEOC provides an illustrative list of assistive technologies:

  • Access to a video relay service or video remote interpreting service using equipment such as a videophone, computer, laptop, tablet, or smartphone.
  • A hearing aid-compatible telephone headset, a telephone amplifier, and/or adapters for using a phone with hearing aids or cochlear implants.
  • Appropriate emergency notification systems (for example, strobe lighting on fire alarms or vibrating pagers).
  • Enabling the streaming of sound directly from a device to hearing aids or cochlear implants.
  • Utilizing accessibility features of mainstream technology (for example, using the captioning feature on virtual meeting platforms).
  • A voice carry-over telephone, captioned telephone, text telephone, or TTY.
  • Equipment used for hearing protection to block noise or to protect hearing function, including equipment that can be used with hearing aids. 
  • Assistive software or applications (for example, for automated captioning, voice recognition, videoconferencing, or sound detection).

The guidance is a helpful resource for employers engaging with applicants and employees to identify reasonable accommodations.  The content regarding when an employer may ask applicants or employees questions about their medical condition(s), the confidentiality of medical information, how to appropriately address safety concerns, and the prohibitions against discrimination, harassment, and retaliation provides employers with a refresher on obligations and restrictions under the ADA. 

On the issue of safety concerns, the EEOC reminds employers that “[w]hen it comes to safety concerns, an employer should be careful not to act on the basis of myths, fears, or stereotypes about hearing conditions.  Instead, the employer should evaluate an individual on the individual’s skills, knowledge, experience, and how the hearing condition affects the individual.”  On this point, the guidance states:

An employer only may exclude an individual with a hearing disability from a job for safety reasons when the individual poses a direct threat.  A “direct threat” is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation.  An employer should conduct an individualized “direct threat” assessment of an individual’s present ability to safely perform the essential functions of the job.  This determination must be based on reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In making a direct threat assessment, the employer must consider: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

The referenced harm must be serious and likely to occur — it cannot be remote or speculative — and an employer must determine whether any reasonable accommodation would reduce or eliminate the risk.

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