A legal refresher for employees on critical aspects of the ADA that every employee with disabilities needs to know while interviewing for a job, once offered, and during employment.
The EEOC ADA Guidance Report, titled “Hearing Disabilities in the Workplace and the Americans with Disabilities Act,” contains a series of questions and answers, with situational examples, regarding hearing impairments in the workplace.
Although the EEOC ADA Guidance Report is focused on issues related to individuals with hearing impairments, it provides an overview of the ADA’s requirements, including the definition of a disability, pre- and post-job offer disability-related questions, and reasonable accommodations in the workplace.
Title I of the ADA, which covers private employers with 15 or more employees and government employers, prohibits discrimination against individuals with disabilities and requires that covered employers provide reasonable accommodations to disabled employees under certain circumstances. For instance, in Michigan, employers must not ask prospective or current employees if they have a disability. On the other hand, if the candidate has an obvious physical disability, the employer may ask how he or she would accomplish the job’s essential functions.
The ADA defines a person with a disability as someone with a physical or mental impairment that substantially limits a significant life activity, has a record of such an impairment, or is regarded as having such an impairment.
Applying this definition, an individual with impaired hearing will fall within the definition of a disability if they can show that they are substantially limited in hearing or another significant life activity (e.g., the primary bodily function of unique sense organs). The definition of “disability” is interpreted broadly in favor of expansive coverage and ignores the positive effects of any mitigating measures, such as hearing aids or cochlear implants. The definition of “disability” favors employees because it is broadly construed in favor of expansive coverage to the maximum extent permitted by the terms of the ADA. For employees whose rights have been violated, cases brought under the ADA ask whether the employer has complied with its obligations and whether discrimination has occurred, not whether the individual meets the definition of disability. 29 C.F.R. § 1630.1(c)(4) (click hyperlink for definitions)
- The ADA restricts an employer’s ability to ask job applicants and employees questions related to disabilities and to conduct medical exams at three separate stages: pre-offer, post-offer, and during employment.
- Pre-Offer
Employers may not ask questions about an applicant’s medical condition or require a medical examination before making a conditional offer. This restriction includes requesting a job applicant about a hearing aid or whether they have any condition that affects their hearing but does not prevent an employer from asking questions about the applicant’s ability to perform the essential functions of the job, such as whether the job applicant can respond quickly to instructions in a noisy, fast-paced work environment.
The ADA does not require job applicants to disclose that they have a disability, including impaired hearing, unless they need a reasonable accommodation for the application process. The EEOC addresses whether an employer may ask questions where the job applicant discloses a hearing condition or has an obvious hearing condition.
In either situation, the employer may not ask questions about the impairment’s nature or severity, when it began, or how the individual manages the condition. However, in such situations, “if the employer reasonably believes that the applicant will require an accommodation to complete the application process or to perform the job because of the condition, the employer may ask whether the applicant will need an accommodation and what type.”
- Post-offer/Pre-employment
Once an offer of employment has been made, an employer may ask questions about an job applicant’s health, including a disability, and may require a medical examination if the employer does so for all job applicants for the same job position. After receiving general medical information from all job applicants, an employer may ask specific individuals for more information about disclosed health conditions.
In Michigan, for a job applicant who has received a conditional job offer and disclosed a current or prior hearing condition, the employer may ask additional questions, such as “How long has the individual had the hearing condition? What, if any, hearing does the applicant have, what specific hearing limitations does the individual experience, and what, if any, reasonable accommodation the applicant may need to perform the job.” An employer may also send the job applicant for a hearing exam or ask for medical documentation, answering specific questions to determine whether the employee can perform the job’s essential functions.
- During Employment
The ADA strictly limits how an employer can ask an employee about a medical condition or require a medical examination. These circumstances include when an employer “knows… [of] a medical condition, has observed performance problems, and reasonably believes that the problems are related to the medical condition,” or when an employer “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.
In Michigan, an employer may ask about a medical condition, such as a hearing condition, in the following circumstances:
- when it is a reasonable belief that the employee will be unable to safely perform the job’s essential functions because of such a condition,
- to support an employee’s request for a reasonable accommodation,
- to enable the employee to participate in a voluntary wellness program or
- to verify their use of sick leave if the employer requires all employees to submit a doctor’s note to justify their use of sick leave.
- The ADA requires employers to provide reasonable accommodation to qualified job applicants or employees with disabilities in certain circumstances.
Regarding a job applicant with disabilities, the ADA requires the employer to provide a reasonable accommodation “that will enable the individual to have an equal opportunity to participate in the application process and to be considered for a job (unless the employer can show undue hardship).” Concerning employees, the obligation is to provide a reasonable accommodation where necessary to enable the employee with a disability to perform the job’s essential functions unless doing so results in an undue hardship to the employer.
The EEOC Guidance Report contains a list of reasonable accommodations that an employer may provide to an employee with a hearing impairment, including a hearing aid-compatible telephone headset, emergency notification systems, assistive software or applications, work area adjustments, time off, altering an employee’s marginal (i.e., non-essential job functions) and reassignment to a vacant position.However, the EEOC notes that the list contains only some examples of the accommodations commonly requested by employees with hearing conditions; other employees may need different changes or adjustments.
Employers are obliged to engage in an “interactive process” – a dialog with the job applicant or employee – to obtain information that will assist the employer in addressing the need for an accommodation. Accordingly, employers may ask the employee requesting an accommodation what the employee needs to perform the job. If an individual’s hearing condition is not obvious, the employer may ask for reasonable documentation regarding how the condition limits major life activities and why a reasonable accommodation is needed. An employer’s request for documentation in such circumstances must be limited to documentation sufficient to establish that the individual has a disability; the employer may not ask for medical records unrelated to the individual’s hearing.
Unfortunately, “there are no magic words a person has to use when requesting an accommodation.” The EEOC suggests as a “best practice” that employers inform all new hires post-offer that they may request any needed accommodation before their start date or once on the job. Providing reasonable accommodation is an ongoing duty that may require more than one accommodation for an employee with a disability. An employer “must consider each request for a reasonable accommodation and determine whether it would be effective and whether providing it would pose an undue hardship.”
According to the EEOC, the employee’s preference should be given primary consideration if there is more than one effective accommodation. An employer is not required to provide the employee’s first choice, although other effective accommodations are just as effective and less expensive or difficult to implement.
- Refusing requests for accommodation under the ADA is a high threshold for an employer to meet.
In Michigan, an employer is not required to provide an accommodation for an employee with a disability if doing so would create an “undue hardship” for the employer. The EEOC explains that an “undue hardship” exists where the accommodation “will result in significant difficulty or expense.” However, for an employer to meet the undue hardship threshold is high, whether the expense or difficulty is “significant” is determined on a case-by-case basis. Also, where one accommodation is too complicated or expensive, an employer may consider alternative accommodations that are not as expensive or difficult.
Even though employers are not required to provide an accommodation in the form of eliminating an essential function of the job, tolerating performance that does not meet its standards, or excusing violations of conduct rules that are job-related and consistent with business necessity and that the employer applies consistently to all employees, the ADA does not require employers to provide employees with any personal use items, such as hearing aids or other devices used both on and off the job.
- Concerns about safety
Employer may “not to act on the basis of myths, fears, or stereotypes about hearing conditions.” Employers need to evaluate each individual with a hearing condition based on the individual’s skills, knowledge, experience, and the effect that the hearing condition has on the individual.
An employer may exclude an individual with a hearing disability from a job only where that individual poses a “direct threat,” defined as a “significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through a reasonable accommodation.”
To determine whether an employee poses a direct threat, an employer must assess the duration of the risk, the nature and severity of the harm, the likelihood that potential harm will occur, and the imminence of potential harm. Where the assessment reveals that the employee poses a direct threat, the employer must determine whether any reasonable accommodation reduces or eliminates the risk before excluding the employee from the job.
- Conclusion
The EEOC ADA Guidance Report includes 28 examples of factual scenarios that accompany the question-and-answer format. Depending on the violation and how you have been impacted, several types of damages and other legal remedies are available, including back pay and front pay, compensatory and punitive damages, and attorneys’ fees and litigation costs.
Equitable remedies are court orders directing the employer to take specific actions. For example, if you were not hired for a job because of your disability, the court could order your employer to hire you. Similarly, if you were terminated from your job because of disability, your employer could be ordered to reinstate you at your previous position.
Back pay, and front pay would make you whole if you sustained economic losses. For instance, suppose you were wrongfully denied a promotion that would have resulted in a higher pay rate. You might be entitled to the difference between your current pay rate and the one you would have received had you been promoted.
Compensatory damages are also available to compensate for emotional harm that was suffered.
ADA violations by employers can result in statutory penalties. These penalties can be up to $75,000 for a first-time violation and up to $150,000 per violation for repeated offenses. These penalties are paid to the government. They are intended to penalize employers that do not take their responsibilities under the ADA seriously.
Reach out to Crane Law and let us help you.
You have rights if you believe your employer has taken any adverse employment-related action against you based on your disability. While the ADA does not protect you from termination if you cannot perform the essential functions of your job, it does prevent your employer from acting against you just because of your disability.
Please Note: The information in this article was based on the prevailing law at the time. However, regulations, laws, and precedents, federal and state, are subject to change, so they may need to be updated. Consult an attorney regarding any legal situation to get the most current information available.