In January 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) released an updated resource document, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act” (the “Update”), which explains how the Americans with Disabilities Act (“ADA”) applies to job applicants and employees who are deaf or hard of hearing or have other hearing conditions.
The Update addresses safety and confidentiality considerations, provides examples of how certain disability-related questions can violate the ADA, and describes technologies that can make providing a reasonable accommodation free or low-cost.
For example, the Update explains that while an employer may not ask questions about an applicant’s medical condition (i.e., if the applicant has a hearing aid or has had any condition that may have caused a hearing impairment), an employer may ask questions pertaining to the applicant's ability to perform the essential functions of the position such as (a) whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment, (b) whether the applicant has good communication skills, or (c) whether the applicant can meet legally mandated safety standards required to perform a job.
The Update reiterates that employers are generally may not ask an applicant about obvious impairments, and even if the applicant voluntarily disclosed that they have a hearing impairment, employers cannot ask questions about the nature of the impairment, when it began, or how the individual copes with the impairment. Nonetheless, in certain circumstances, the employer may ask whether the applicant will need an accommodation and what type.
However, employers can ask additional questions after a job offer is made and an applicant discloses that they have a hearing impairment. Once a job offer is made and the applicant discloses the hearing impairment, employers can ask the applicant additional questions, such as how long they have had the hearing impairment; what, if any, hearing the applicant has; what specific hearing limitations the individual experiences; and what, if any, reasonable accommodations the applicant may need to perform the job.
Notably, an employer may not withdraw an offer from an applicant with a hearing impairment if the applicant is able to perform the essential functions of the job, with or without reasonable accommodation, without posing a direct threat to the health or safety of himself or others that cannot be eliminated or reduced through reasonable accommodation.
The Update details various assistive technologies that are available to assist employees with hearing impairments, such as TTY, assistive listening devices, video relay services, sign language interpreters, and assistive computer software.
Employers should carefully review the Update to ensure continued compliance with the ADA and promptly consult their employment law counsel for advice or clarification.
Alamea Deedee Bitran is an attorney in the Fort Lauderdale office of Shutts & Bowen, where she is a member of the Business Litigation Practice Group. Deedee represents employers, business owners, lenders, purchasers and ...
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