EEOC Issues New Guidelines For Hiring and Employing Individuals With Hearing Impairments
The EEOC recently released updated guidance regarding the applicability of the Americans with Disabilities Act (ADA) to individuals with hearing impairments. The guidance provides realistic scenarios illustrating reasonable accommodations, the appropriateness of certain pre- and post-offer questions, and employer safety concerns.
First, the guidance identifies technologies and approaches that, depending on the circumstances, may be reasonable accommodations (as long as they do not place an undue burden on the employer). These include sign language interpreters (either in person or virtually), written memos to employees with hearing impairments, hearing aid compatible technology, closed captioning or other accessibility features on mainstream technology, and equipment for hearing protection. The guidance also suggests that unpaid time off can be a reasonable accommodation if time off is needed obtain certain hearing assistance—such as training a hearing dog or obtaining cochlear implants and hearing aids. Employees may be entitled to multiple reasonable accommodations.
The guidance also outlines examples of pre- and post-offer questions regarding an individual’s hearing impairment that are appropriate under the ADA. The guidance reiterates that an employer cannot ask an applicant about his or her medical conditions and cannot require a medical screening before a conditional offer is made. While an employer may not ask questions specifically referencing hearing impairments, treatment for such, or assistive devices an applicant may use to correct or mitigate his or her hearing impairment, the employer may ask whether an applicant can perform the essential functions of the job. The guidance includes specific examples of allowable pre-offer questions.
According to the guidance, an employee is not required to disclose a disability before accepting an offer. An employer may ask about an obvious hearing condition or a disclosed hearing condition only if the employer believes the applicant will require an accommodation to perform the job because of the hearing impairment.
Similarly, employers are precluded from asking certain disability related questions after a conditional offer is made. However, employers may ask applicants about their health and may require a medical examination, as long as all employees are treated equally. Employers may also seek additional specific medical information if it is related to previously obtained medical information. Furthermore, when an applicant discloses a hearing impairment after an offer has been made, the employer is permitted to ask how long the applicant has had a hearing impairment, what hearing limitations the applicant has, and whether the applicant will need a reasonable accommodation to perform the job. Employers are also permitted to ask an employee about a hearing impairment if the employer believes that the employee will not be able to safely perform the essential functions of his or her job due to the impairment.
Finally, the guidance emphasizes that employers should not stereotype individuals with hearing impairments or assume they will be unable to perform a job safely. Employers may only exclude an individual with hearing impairments where he or she poses a direct threat, meaning that the individual presents a significant risk of substantial harm to herself or others that cannot be mitigated or eliminated through use of a reasonable accommodation. The harm must be serious and likely to occur. Such a determination must be based on reasonable medical judgment.
Employers may want to revisit their ADA policies, screening and interview questions, and post-offer medical examinations and questions to ensure they comply with the ADA, as illustrated in the EEOC’s guidance.
A full copy of the EEOC Guidance is available here.
Nemeth Bonnette Brouwer PC will continue to monitor changes in the ADA and EEOC guidance updates. Feel free to contact any of the attorneys at the firm with your questions.
