Key Takeaways

• Individuals with a variety of hearing conditions may have disabilities covered by the ADA.

• Pre-job offer disability-related questions can violate the ADA, but certain questions regarding the ability of a candidate to perform the essential functions of the role may be permissible.

• Employers have a duty to provide accommodations for job applicants and employees with hearing disabilities where necessary for the application process or to perform the essential functions of the job and where it would not pose an undue hardship. Accommodations may include such things as providing an interpreter or assistive technology.

• Employers should be careful not to act on stereotypes when evaluating candidates with hearing disabilities.

On January 24, 2023, the Equal Employment Opportunity Commission (“EEOC”) released updated guidance on how the Americans with Disabilities Act (“ADA”) applies to job applicants and employees with hearing disabilities. The guidance provides information about hearing conditions as a disability under the ADA, outlines best practices for employers in dealing with confidential medical information, shares guidance on accommodations for applicants and employees, addresses employer concerns about safety, and details reporting procedures for employees.

The following are some highlights from the updated guidance.

Hearing Conditions as a “Disability” under the ADA  

The guidance states that people with a variety of hearing conditions (including deafness, being hard of hearing, experiencing ringing in the ears, or having sensitivity to noise) may have disabilities covered by the ADA.

The guidance notes that under the ADA, the definition of “disability” is interpreted broadly in favor of expansive coverage. Accordingly, individuals with an impairment of hearing will demonstrate an “actual disability” under the ADA “if they can show that they are substantially limited in hearing or another major life activity.” This determination must not take into account the use or availability of any mitigating measure such as a hearing aid or a cochlear implant. Individuals may also be covered by the ADA “if they have a record of an impairment that substantially limited a major life activity in the past,” such as if an individual’s hearing has been corrected surgically. Finally, an individual is covered “if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of a 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.”

Best Practices for Obtaining, Using and Disclosing Medical Information

The guidance outlines the circumstances under which an employer may ask applicants or employees questions related to disabilities and to conduct medical examinations – including those relating to hearing impairments – under the ADA.

Pre-Employment Offer

The guidance reiterates that “an employer may not ask questions about an applicant’s medical condition or require an applicant to have a medical examination before it makes a conditional offer” of employment. For example, employers cannot ask whether an applicant uses a hearing aid or has any condition that affects the applicant’s hearing. This also includes asking applicants questions about obvious impairments, or questions about the nature or severity of a voluntarily disclosed hearing condition.

The guidance stresses that the ADA does not require applicants to disclose that they have or had a hearing disability prior to accepting a job offer “unless they will need a reasonable accommodation for the application process.”

However, the guidance notes that “an employer may ask questions pertaining to the applicant’s ability to perform the essential functions of the position, with or without reasonable accommodation.”  For example, whether the applicant has good communication skills or can respond quickly to instructions in a noisy, fast-paced work environment.

Likewise, the guidance states that “if an applicant has an obvious impairment or has voluntarily disclosed the existence of an impairment and 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, the employer may ask whether the applicant will need an accommodation and what type.”

Post-Employment Offer

The guidance states that after making a job offer, “an employer may ask questions about the applicant’s health” (including the existence/nature of a disability) and “may require a medical examination” on an affirmative or unprompted basis as long as all applicants for the same type of job are asked the same questions and are required to take the same examination. After an employer has obtained basic medical information for all individuals who have received job offers, an employer “may ask specific individuals for more medical information if the request is medically related to the previously obtained medical information.”

The guidance further specifies that after receiving a conditional job offer, if an applicant discloses a hearing condition “an employer may ask the applicant additional questions, such as how long the individual has had the condition; 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.” The employer may also send the applicant for a follow-up medical examination or ask the individual to submit medical documentation specifically designed to assess the applicant’s ability to perform the job’s functions safely.

The guidance also affirms that an employer “may not withdraw an offer from an applicant with a hearing disability if the individual is able to perform the essential functions of a job, with or without reasonable accommodation, without posing a direct threat (that is, a significant risk of substantial harm) to the health or safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation.”

Current Employees

The guidance notes that the ADA limits the circumstances under which an employer may ask questions about an employee’s medical condition or require medical examination. Generally, “an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition.”

The guidance also specifies that an employer may ask an employee about a hearing condition under the following circumstances:

• the employer has a reasonable belief that the employee will be unable to safely perform essential job functions because of the condition;

• to support the employee’s request for a reasonable accommodation;

• to enable the employee to participate in a voluntary wellness program; or

• to verify the employee’s use of sick leave related to a hearing condition.

Providing Reasonable Accommodations for Applicants and Employees

The guidance notes that the ADA requires employers to provide reasonable accommodations to enable applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship.

As the guidance explains, “reasonable accommodations related to the benefits and privileges of employment include accommodations that are necessary to provide individuals with disabilities access to facilities or portions of facilities to which all employees are granted access (for example, employee break rooms and cafeterias), access to information communicated in the workplace, and the opportunity to participate in employer-sponsored training and social events.”

Some reasonable accommodations may include:

• a sign language interpreter;

• assistive technology including, but not limited to: hearing-aid compatible headsets, video remote interpreting services, hearing protection equipment, assistive software or applications and accessible emergency notification systems;

• appropriate written memos and notes;

• work area adjustments;

• time off;

• altering non-essential job functions;

• reassignment to a vacant position; and

• any other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities.

The guidance recommends that employers ask the particular employee requesting an accommodation what is needed that will help the employee do the job.

The guidance also notes that the duty to provide a reasonable accommodation is ongoing. Therefore, although some individuals with disabilities may only require one reasonable accommodation, others may need more than one. Employers must consider each request and determine whether it would be effective and not unduly burdensome based on their circumstances.

Undue Hardship

The guidance reiterates that an employer does not have to provide an accommodation if doing so would pose an “undue hardship.” This means that providing the accommodation would result in significant difficulty or expense. The employer is not required to provide the employee’s first choice of reasonable accommodation and may opt to provide an easier or less costly accommodation as long as it meets the employee’s needs.

Furthermore, an employer does not have to eliminate an essential function of a job as a reasonable accommodation, tolerate sub-standard performance, or excuse conduct violations to rules that the employer applies consistently to all employees. And, employers are not required to provide employees with personal use items, such as hearing aids or other devices that are used both on and off the job.

Note, however, that the guidance also specifies that “individuals with disabilities who meet initial requirements to be considered for a job should not be excluded from the application process because the employer speculates, based on a request for reasonable accommodation for the application process, that it will be unable to provide the individual with reasonable accommodation to perform the job.” Therefore, an employer should assess the need for accommodation during the application process separately from those that may be needed to perform the job.

Addressing Employer Concerns about Safety

The guidance warns that employers should be careful not to act on fears or stereotypes about hearing conditions and instead evaluate an individual on “skills, knowledge, experience, and how the hearing condition affects the individual.”

The guidance explains that 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 defined as a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation. The employer must make this determination based on “reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.”

The guidance also notes that if a federal law prohibits an employer from hiring a person with a hearing condition for a particular position, the employer is not liable under the ADA.  However, “[t]he employer should be certain . . . that compliance with the law actually is required, not voluntary” and also “should be sure that the law does not contain any exceptions or waivers.”

The ADA’s Prohibition on Harassment

The guidance reiterates that the ADA prohibits harassment based on disability and encourages employers to make clear that they will not tolerate harassment based on disability or on any other protected basis through a written policy, employee handbook, staff meetings or periodic trainings.