February 13 Tip of the Week

“Disabilities and Accommodation”

The Equal Employment Opportunity Commission recently issued new guidance regarding the treatment of employees and/or applicants who have hearing disabilities.  This guidance, issued on January 24, 2023, can be found on the EEOC’s website at the following link:  https://www.eeoc.gov/laws/guidance/hearing-disabilities-workplace-and-americans-disabilities-act.  While the document addresses only individuals with hearing disabilities, it essentially functions as a primer on how to handle individuals with disabilities who apply for employment with a company or individuals with disabilities who are employed by a company.  As any football coach will tell you, knowing your adversaries playbook provides you with an advantage in any competition.  The same is true in employment law – knowing what the enforcement agencies are looking for when examining claims or determining an employer’s compliance with the law provides is a great advantage to employers who want to avoid liability. 

One of the first and most important elements of this guidance is the confirmation that the EEOC reads the Americans with Disabilities act expansively to ensure broad coverage.  In this case, with respect to hearing disabilities, the EEOC recognizes noise sensitivity and tinnitus as disabilities under the ADA.  Furthermore, the guidance also reiterates that an individual may be protected if they are regarded as having a disability or have a history of such a disability.  So, for example, an individual who uses a hearing aid or a cochlear implant will still be considered disabled under the law because of their history of deafness even though the hearing aid or other corrective device allows them to hear.  This expansive definition may also impact individuals who have vision issues or other conditions that interfere with a major life activity but have been corrected through surgical or other means. 

The guidance also provides an excellent reminder of what an employer can and cannot ask on an employment application or in a job interview.  Prior to making an offer of employment, an employer cannot ask a prospective employee any questions regarding any perceived medical conditions or other potential areas of disability.  All pre-offer inquiries must be job related and employers cannot ask about an employee’s specific abilities and/or limitations.  This underscores the need to have well written and comprehensive job descriptions that allow an employer to determine whether an employee can perform the essential functions of a job.  It is also a reminder that employers need to review their job descriptions and the duties of each position to ensure that they have appropriately identified what constitutes an essential function of the job. 

Another important piece of information contained in this guidance is what an employer should do when faced with a poorly performing employee.  In some instances, the poor performance may be related to an employee’s medical condition or other potential disability.  However, in general, employers should address performance issues in a direct and objective fashion.  As an employer, you do not want to provide a ready-made excuse for an employee who is failing to perform as expected by attributing their failures to some sort of medical condition or disability – in doing so, you may be providing that employee with an ADA claim.  When addressing employee performance issues, an employer should allow an employee to provide an explanation or a defense regarding their performance.  Once that is received, an employer should determine whether the information provided by the employee rises to the level of placing the employer on notice that the employee has a disability that may require a reasonable accommodation.  If so, the employer should begin the interactive process with the employee to determine whether a reasonable accommodation is available that would allow the employee to meet their performance expectations. 

The guidance also provides an excellent section on accommodating an employee’s need for accommodations.  In addition to providing a list of potential accommodations for hearing impaired individuals, it also discusses how to determine what is a reasonable accommodation.  The interactive process and arriving at an appropriate accommodation of an employee with a disability can be a lengthy process.  Employees often seek one type of accommodation that they prefer, while employers may offer an alternative accommodation that will be easier or less costly to implement.  Employees are not entitled to demand a specific accommodation, but when engaging in the interactive process to develop and arrive at a reasonable accommodation, the employer needs to be respectful and open minded. 

This recent guidance from the EEOC should provide employers with the impetus to review their hiring practices and their policies regarding performance evaluations and reasonable accommodation requests in the workplace.   It should also prompt a review of job descriptions to determine if qualifications and essential functions are appropriately identified and justified by the duties of the position.  MyHRcounsel can assist employers in developing legally compliant employee handbooks and hiring processes that are consistent with this guidance.  We can assist with the development and review of job descriptions to place the employer in the best position to deal with potential accommodation requests.  Finally, we are also available to advise employers regarding specific employee situations involving performance issues and the potential need for reasonable accommodations.