Questions and Answers about Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act

Employees

The ADA strictly limits the circumstances under which an employer may ask questions about an employee's medical condition or require the employee to have a medical examination. Once an employee is on the job, his actual performance is the best measure of ability to do the job.

6. When may an employer ask an employee if a hearing impairment, or some other medical condition, may be causing her performance problems?

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. At other times, an employer may ask for medical information when it has observed symptoms, such as difficulties hearing, or has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer's existing policies concerning performance.[20]

Example 3: Rupa wears a hearing aid to improve her bilateral, moderate hearing impairment. She was recently promoted from an administrative position to sales associate for a cable company. The new position requires significantly more time on the phone interacting with customers. Although Rupa has received excellent reviews in the past, her latest review was unsatisfactory citing many mistakes in the customer orders she records over the phone. The employer may lawfully ask Rupa if she has any difficulty hearing customers and, if so, whether she would benefit from an accommodation. A possible accommodation could be a captioned telephone that would allow Rupa to communicate verbally while receiving an almost real-time text relay of the conversation.

Example 4: An employee with a profound hearing impairment has received below average evaluations for six months. The employee's poor performance began when she was not selected for a vacant supervisory position. Moreover, the kinds of performance problems the employee is having - a significant increase in the number of late arrivals and typographical errors in written reports the employee routinely produces - cannot reasonably be attributed to a problem with the employee's hearing. The employer may not ask for medical information about the employee's hearing impairment, but instead should counsel the employee about the performance problems or otherwise proceed as appropriate in accordance with its policies applicable to employee performance.

[20] An employer also may ask an employee about his hearing impairment or send the employee for a medical examination when it reasonably believes the employee may pose a direct threat because of his impairment.  See "Concerns About Safety."

7. Are there any other instances when an employer may ask an employee with a hearing impairment about her condition?

Yes. An employer also may ask an employee about a hearing impairment when it has a reasonable belief that the employee will be unable to safely perform the essential functions of her job because of the hearing impairment. In addition, an employer may ask an employee about her hearing impairment to the extent the information is necessary:

• to support the employee's request for a reasonable accommodation needed because of her hearing impairment;

• to verify the employee's use of sick leave related to her hearing impairment  if the employer requires all employees to submit a doctor's note to justify their use of sick leave;[21] or

• to enable the employee to participate in a voluntary wellness program.[22]

Example 5: An employer maintains a leave policy requiring all employees who use sick leave for a medical appointment to submit a doctor's note upon returning to work. Mark, an employee, uses sick leave to attend an audiologist appointment to adjust his hearing aids. In accordance with its policy, the employer can require Mark to submit a doctor's note for his absence; however, it may not require the note to include any information beyond that which is needed to verify that Mark used his sick leave properly (such as, the degree of Mark's hearing loss, the strength of his hearing aids, or the results of the adjustment).

[21] An employer also may ask an employee for periodic updates on her condition if the employee has taken leave and has not provided an exact or fairly specific date of return or has requested leave in addition to that already granted.  Of course, an employer may call employees on extended leave to check on their progress or to express concern for their health without violating the ADA.