The American With Disabilities Act is expansive and requires employers to give reasonable accommodations to disabled employees. The general framework of the ADA is this:
- During the hiring process, employers may not ask about disabilities, seek medical information or require potential employees to disclose physical impairments in the hiring process.
- Once an employee is hired, the employer may not seek certain medical information (such as diagnosis or prognosis), nor disclose medical information or the need for an accommodation to other employees. The employer may disclose the disability and the need for accommodation to certain supervisors or managers, advisors (legal, HR, insurance, ADA consultants) and emergency/safety personnel.
- Once an employee is hired, an employer may ask about medical conditions only to the extent that it is looking to accommodate the employee. Indeed, the employer has a duty to ask and provide accommodations once it has a reasonable belief that the employee has a medical impairment (including if that impairment is impacting job performance).
- An employer may not demote, terminate or treat the disabled employee differently than non-disabled employees. The goal of the ADA is to provide disabled people with the same opportunities as non-disabled people. The relevant question is whether the employee can accomplish the necessary job functions with or without reasonable accommodations.
- Accommodations must be provided unless they create an undue hardship. The EEOC defines that as “a significant difficulty or expense.” In other words, most accommodations are going to be required. And if one is burdensome, there may be a lesser accommodation that gets the job done and helps the employee succeed. So employers: make sure you engage in the interactive process!
There are many applications, disabilities and tales-of-woe that I could tell you about with respect to the ADA. Employers get it wrong all the time. Even big employers with big law firms get it wrong all the time.
For example, in 2011, the EEOC prosecuted UPS for not providing sign language interpreters for deaf employees. They ended up paying $95,000 in fines (not including their defense attorneys’ fees) and had to make an EEOC-supervised company-wide correction (including hiring an ADA Coordinator and posting the rights of deaf employees at each facility.
Here are some things that employers must do when they have a hearing-impaired employees. And, by the way, as many as 1 in 5 Americans may be classified as hearing-impaired and protected by the ADA, according to the EEOC.
- Provide a sign-language interpreter at company meetings, reviews and trainings. Written records and a note-taker will not be adequate because important aspects of the communication is lost.
- Use assistive technology such as a TTY, text telephone, voice carry-over telephone, or captioned telephone, a video relay service, a telephone headset, computer software (for example, net meetings, voice recognition software), assistive listening devices, augmentative communication devices that allow users to communicate orally by typing words that are then translated to sign language or a simulated voice, or communication access real-time translation, which translates voice into text at real-time speeds.
- Use written memorandum and notes when appropriate, rather than just oral instructions.
- Adjust the employee’s work area (for example, put their office or desk away from noisy areas that interfere with hearing devices and place them near emergency alarms that feature strobe lighting).
- Adjust the employee’s non-essential job duties.
- Give time off for leave, medical appointments, etc.
- Engaging in the interactive process with the employee and his or her physicians to determine other possible accommodations.
There are good business reasons to do the work of accommodating employees (besides not getting sued!) For example, you avoid miscommunication, frustration and wasted time. Miscommunication with hearing-impaired employees frustrates their supervisors who may get the false impression that the employee is a poor performer or unintelligent. It may require HR or legal to become involved. Miscommunication takes up valuable company time with back and forth. It adds to employee discontent and frustration.
When you are considering a reasonable accommodation for a deaf employee, step into their shoes and think about their experience as your employee. Be careful to not marginalize hearing-impaired employees by not facilitating their ability to voice their opinions and ask questions. Always keep in mind that communication is vital to the health of our businesses and knowledge. Inclusion in the company is vital to your employees’ happiness. If you have deaf employees, consider the way they communicate and the way you can maximize their contribution to your organization.
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