On January 24, 2023, the Equal Employment Opportunity Commission (“EEOC”) released updated guidance on application of the Americans with Disabilities Act (“ADA”) 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 dealing with confidential medical information, shares guidance on accommodations for applicants and employees, addresses employer concerns about safety, and details reporting procedures for employees.

There are several key components of the updated guidance on this issue:

• First, 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 be disabled within the meaning of the ADA. Of course, under the ADA, the definition of “disability” is broadly interpreted in favor of expansive coverage. As a result, individuals with hearing impairment will demonstrate an “actual disability” under the ADA “if they can show that they are substantially limited in hearing or another major life activity” – without taking into account the use or availability of any mitigating measure. Individuals may also be covered “if they have a record of an impairment that substantially limited a major life activity in the past,” if, for example, their hearing has been surgically corrected.
• Next, 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 related to hearing impairments – under the ADA.
  • For example, in a pre-employment offer situation, 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. And the guidance stresses that the ADA does not require applicants to disclose that they have or had a hearing disability before 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.” 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 or to perform the job because of the condition, the employer may ask whether the applicant will need an accommodation and what type.”
  • Next, in a post-employment offer situation, 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, the employer “may ask specific individuals for more medical information if the request is medically related to the previously obtained medical information.” 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 to the health or safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation.”
  • Finally, for 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 a 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.” More specifically, the guidance states that an employer may ask an employee about a hearing condition under the following circumstances: (1) the employer has a reasonable belief that the employee will be unable to safely perform essential job functions because of the condition; (2) to support the employee’s request for a reasonable accommodation; (3) to enable the employee to participate in a voluntary wellness program; (or (4) to verify the employee’s use of sick leave related to a hearing condition.

The guidance also describes the reasonable accommodations that employers might use to enable applicants and employees with hearing disabilities to enjoy equal employment opportunities. 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, access information communicated in the workplace, and the opportunity to participate in employer-sponsored training and social events.” For individuals with hearing disabilities, those 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.

Of course, the guidance recommends that, as part of the interactive process, employers should ask the employee requesting an accommodation for guidance on what is needed to help the employee do their job.

Safety concerns are one of the more difficult issues confronting the question of accommodations for employees with hearing difficulties. As to this point, the guidance warns that employers should be careful not to act on fears or stereotypes about hearing conditions but should instead evaluate an individual on their “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,” which 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.”