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

OBTAINING, USING, AND DISCLOSING MEDICAL INFORMATION

Title I of the ADA limits an employer's ability to ask questions related to hearing and other disabilities and to conduct medical examinations at three stages: pre-offer, post-offer, and during employment.

Job Applicants

Before an Offer of Employment Is Made

2. May an employer ask a job applicant whether he has or had a hearing impairment or about his treatment related to any hearing impairment prior to making a job offer? 

No. An employer may not ask questions about an applicant's medical condition[19] or require an applicant to have a medical examination before it makes a conditional job offer. This means that an employer cannot legally ask an applicant such questions as:

• whether she has ever had any medical procedures related to her hearing (for example, whether the applicant has a cochlear implant);

• whether she uses a hearing aid; or

• whether she has any condition that may have caused hearing impairment.

Of course, an employer may ask questions pertaining to the applicant's ability to perform the essential functions of the position, with or without reasonable accommodation, such as:

• whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment

• whether the applicant has good communication skills

• whether the applicant can meet legally mandated safety standards required to perform a job.

[19] Federal contractors are required under 41 C.F.R. § 60-741.42, a regulation issued by the Office of Federal Contract Compliance Programs (OFCCP), to invite applicants to voluntarily self-identify as persons with disabilities for affirmative action purposes. The ADA prohibition on asking applicants about medical conditions at the pre-offer stage does not prevent federal contractors from complying with the OFCCP's regulation. See Letter from Peggy R. Mastroianni, EEOC Legal Counsel, to Patricia A. Shiu, Director of OFCCP, www.dol.gov/ofccp/regs/compliance/section503.htm#bottom.   

3. Does the ADA require an applicant to disclose that she has or had a hearing impairment or some other disability before accepting a job offer?

No.  The ADA does not require applicants to disclose that they have or had a hearing impairment or another disability unless they will need a reasonable accommodation for the application process (for example, a sign language interpreter). Some individuals with a hearing impairment, however, choose to disclose or discuss their condition to dispel myths about hearing loss or to ensure that employers do not assume that the impairment means the person is unable to do the job.

Sometimes, the decision to disclose depends on whether an individual will need a reasonable accommodation to perform the job (for example, specialized equipment, removal of a marginal function, or another type of job restructuring). A person with a hearing impairment, however, may request an accommodation after becoming an employee even if she did not do so when applying for the job or after receiving the job offer.

4. May an employer ask questions about an obvious hearing impairment, or ask follow-up questions if an applicant discloses a non-obvious hearing impairment?

No. An employer generally may not ask an applicant about obvious impairments. Nor may an employer ask an applicant who has voluntarily disclosed that he has a hearing impairment any questions about the nature of the impairment, when it began, or how the individual copes with the impairment. However, if an applicant has an obvious impairment or has voluntarily disclosed the existence of a hearing impairment and the employer reasonably believes that he will require an accommodation to perform the job because of the impairment, the employer may ask whether the applicant will need an accommodation and what type. The employer must keep any information an applicant discloses about his medical condition confidential. (See "Keeping Medical Information Confidential.")

Example 1: Julie has a severe hearing impairment in her right ear and is applying to the telephone sales department of a large clothing company. Julie tells the employer of her hearing impairment during the interview. The employer's sales associates currently wear headsets with earpieces for the right ear. The employer may ask Julie during her interview if she would need a left-sided headset as an accommodation.

After an Offer of Employment Is Made

After making a job offer, an employer may ask questions about the applicant's health (including questions about the applicant's disability) and may require a medical examination, as long as all applicants for the same type of job are treated equally (that is, all applicants are asked the same questions and are required to take the same examination). After an employer has obtained basic medical information from all individuals who have received job offers, it may ask specific individuals for more medical information if the request is medically related to the previously obtained medical information. For example, if an employer asks all applicants post-offer about their general physical and mental health, it can ask individuals who disclose a particular illness, disease, or impairment for medical information or require them to have a medical examination related to the condition disclosed.

5. What may an employer do when it learns that an applicant has or had a hearing impairment after she has been offered a job but before she starts working?

When an applicant discloses after receiving a conditional job offer that she has or had a hearing impairment, an employer may ask the applicant additional questions, such as how long she has had the hearing impairment; 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 also may send the applicant for a follow-up hearing or medical examination or ask her to submit documentation from her doctor answering questions specifically designed to assess her ability to perform the job's functions safely. Permissible follow-up questions at this stage differ from those at the pre-offer stage when an employer may only ask an applicant who voluntarily discloses a disability or whose disability is obvious whether she needs an accommodation to perform the job and what type.

An employer may not withdraw an offer from an applicant with a hearing impairment if the applicant 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 himself or others that cannot be eliminated or reduced through reasonable accommodation. ("Reasonable accommodation" is discussed in Questions 9 through 14.  "Direct threat" is discussed in Question 15.)

Example 2: Lydia applies for a position as an aircraft mechanic. After receiving a job offer, she is given a physical examination. The examination reveals that she has a slight hearing loss in her left ear. Although Lydia worked as an aircraft mechanic in noisy environment with the same level of hearing while she was a member of the military, the employer is concerned that Lydia will pose a risk to herself or others because she will not be able to hear sounds that might alert her to dangers in the work area such as the presence of moving aircraft or other moving vehicles. The employer may not withdraw the job offer simply because it believes Lydia cannot work safely in a high-noise environment. It must determine whether Lydia's hearing impairment would result in a direct threat (that is, a significant risk of substantial harm to Lydia or to others in the workplace).  The employer may obtain additional information about Lydia's hearing impairment, including how her hearing impairment affected her past work experience, to make this determination.

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.