Below are four key takeaways from the Guidance for employers to consider:

1. Know When and How to Inquire About Hearing Conditions

Different rules apply to different stages of the hiring process.

A. The Pre-Offer Stage

During the pre-offer stage, an employer may ask questions pertaining to an applicant’s ability to perform the essential functions of the position (with or without a reasonable accommodation) but may not ask questions about the applicant’s specific hearing condition.

The Guidance provides several examples of questions that an employer may and may not ask of individuals with hearing conditions during the pre-offer stage.

Permitted Questions

• 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; and
• If the applicant has an obvious hearing condition (or voluntarily discloses such a condition) and the employer believes an accommodation may be needed, whether the applicant will need a reasonable accommodation to complete the application process or perform the job.

Prohibited Questions

• Whether the applicant has ever had any medical procedures related to hearing;
• Whether the applicant uses a hearing aid;
• Whether the applicant has any condition that affects the applicant’s hearing;
• If the applicant voluntarily discloses a hearing condition, what is the nature or severity of the condition, when it began, or how the individual manages the condition; and
• Any questions which would require the applicant to disclose that they have a hearing disability.

B. The Post-Offer Stage

In the post-offer stage, an employer may ask questions about an applicant’s health, provided that all applicants for the same type of job are subject to the same questions. Specific questions about an individual’s hearing condition may be asked only if the applicant disclosed information regarding their hearing condition in response to a general request for medical information.

The Guidance provides the following examples of post-offer inquiries an employer may make after applicants disclose having a hearing condition:

• How long the applicant has had the hearing condition;
• What, if any, hearing the applicant has;
• What specific hearing limitations the applicant experiences; and
• What, if any, reasonable accommodations the applicant may need to perform the job.

The Guidance makes clear that if an applicant with a hearing disability can perform the essential functions of the job (with or without reasonable accommodation), the employer may withdraw the offer because of this only if the applicant poses a direct threat to the safety of themselves or others that cannot be eliminated or reduced through a reasonable accommodation.

C. During Employment

Once the applicant is employed, the Guidance provides that an employer may inquire about an employee’s hearing condition, or require the employee to undergo a medical examination, but only in the following situations:

• When the employer knows about the particular employee’s hearing condition;
• When the employer has observed symptoms such as a hearing difficulty, or received reliable information from others indicating the employee may have a hearing condition that is causing performance problems;
• When the employer has observed performance problems, and reasonably believes that the problems are related to a hearing condition;
• When the employer reasonably believes that an employee with a hearing condition cannot safely perform the essential functions of the job because of the condition; and
• When additional information is necessary to support the employee’s request for a reasonable accommodation, to enable the employee to participate in voluntary wellness programs, or to verify the employee’s use of sick leave related to the hearing condition (if the employer requires a doctor’s note to justify sick leave generally).

2. Understand the Types of Reasonable Accommodations That May Be Appropriate for Individuals with Hearing Disabilities

Whether an accommodation is warranted, reasonable, or an undue hardship under the ADA is a fact-intensive analysis. Rapid changes in technology can make the process of considering hearing disability accommodation requests, challenging. Taking these technological advancements into consideration, the Guidance adds several new, modernized examples to a non-exhaustive list of reasonable accommodations that may be appropriate for applicants and employees with hearing disabilities. This list includes but is not limited to:

• Sign language interpreters;
• Assistive technology, which includes: ensuring access to video relay services or video interpreting services, providing hearing aid-compatible telephones/headsets/adapters, using appropriate emergency notification systems (such as strobe lighting on fire alarms or vibrating pagers), enabling streaming of sounds directly from a hearing device to hearing aids or cochlear implants, using accessibility features of mainstream technology, providing voice carry-over/captioned/text telephones, distributing equipment for hearing protection or to protect hearing function, using assistive software and listening devices, providing augmentative communication devices, and using communication access real-time translation (CART); and
• Written memos and notes / note-taking assistance for individuals using CART services or sign language interpretation.

Of note, even if an employer believes that it will be unable to accommodate an individual with a hearing disability, the employer has a duty to provide the individual with a reasonable accommodation during the application process.

3. Conduct Direct Threat Assessments Based on the Specific Individual and Job, Not Myths and Fears

When there is a concern that an individual with a disability poses a direct threat to the safety of themselves or others, the ADA provides employers with greater flexibility to inquire about or take action against such individual. The Guidance reaffirms that when considering direct threats for individuals with hearing disabilities, employers must conduct an individualized analysis based on the specific employee or applicant’s skills, knowledge, and experience, as well as the most current medical guidance regarding the hearing condition at issue. Myths, stereotypes, or fears (including speculative risks) about hearing conditions, will not support a direct threat analysis.

4. Remember the Basics

While the Guidance contains many updates, not everything is new. Rather, the EEOC reiterates a number of things throughout the Guidance that employers should keep in mind when engaging with employees at every stage of the process:

• There are no “magic words” that employees or applicants must use to request a reasonable accommodation – they need only tell employers that they need an adjustment or change at work because of an impairment.
• Remember that an individual with a hearing disability may be entitled to more than one accommodation and these accommodation needs may be the same or different for applicants and employees.
• The request for an accommodation need not come from the applicant/employee, but rather, it can come from a family member, friend, or health professional, among others.
• If employers need more information to assess the accommodation request, they must engage in the interactive process.
• Remember that even if an accommodation was provided during the job application process, or previous position during the employee’s employment, the accommodation obligation does not end there, and the employer may need to continue to discuss appropriate accommodations going forward.
• Inform all new hires post-offer that they can request any needed accommodations.
• Employers must maintain the confidentiality of medical information learned about an applicant or employee.

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