On January 24, 2023, the EEOC released an updated guidance document, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act.” The guidance specifically focuses on how the Americans with Disabilities Act (“ADA”) applies to job applicants and employees with hearing disabilities, including when employers may ask for information regarding a disability, types of accommodations, handling safety concerns, and harassment.
The guidance reminds readers that employers with 15 or more employees are covered, and individuals with disabilities include those who have, have had, or are regarded as having a substantially limiting impairment. Employers may not ask about a disability before a job offer, and they may not require job applicants to disclose a disability before accepting an offer. Once a conditional offer is extended, an employer may ask an applicant to undergo a medical examination, as long as all employees are treated equally, regardless of disability status. Importantly, an employer may not withdraw an offer if the individual is capable of performing the job’s essential functions and there is no direct threat to the health and safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation.
An employer may ask about a disability during employment, in certain circumstances. If an employee has performance problems and the employer reasonably believes they are related to a disability, such as a hearing condition, they may ask for medical information or offer an accommodation. Additionally, if an employer is concerned about an employee’s ability to perform a job safely, they may ask for medical information regarding the hearing impairment.
The guidance stresses that medical information, especially regarding hearing disabilities, must be kept confidential. If an accommodation is provided that would not normally be permitted in the workplace, employers may not disclose to other employees that it is a reasonable accommodation. Alternatively, employers are encouraged to emphasize that employee issues are personal, and to train all employees on the requirements of equal employment laws, including the ADA and reasonable accommodation process.
Employers should review the updated guidance and ensure their reasonable accommodation policies and procedures are up to date.
If you have questions or concerns about your ADA compliance policies and procedures, please do not hesitate to reach out to any member of Gardner Skelton’s employment team.