After spending most of my life in high noise environments like propellor-driven airplanes, riding lawn tractors and using leaf blowers, I've started to notice a loss of hearing. I'm not alone. According to recently updated guidance from the Equal Employment Opportunity Commission 15% of American adults report some loss of hearing ability. Both employers and workers need to be aware of the implications for the workplace since the Americans with Disabilities Act [ADA] will protect employees with hearing impairments from employment discrimination.
What Employers Must Comply with the ADA?
The ADA applies to businesses that have 15 or more employees, and also state and local government units. A coordinate provision of another law, Section 501 of the Rehabilitation Act, protects federal government employees.
What Hearing Conditions Are Subject to the ADA?
You may be wondering how hearing conditions are determined and the process used to determine disability. Hearing conditions subject to ADA include:
There is no statutory definition of deafness although it includes both complete and partial hearing loss. So long as the amount of loss significantly affects a major life activity, such as hearing, it will be considered a disabling condition. According to the World Health Organization, hearing loss falls into four categories: mild, moderate, severe, and profound. While not binding for purposes of interpreting the ADA, the WHO considers "deafness" to involve the profound level where no sound or only very loud sounds can be heard.
Ringing in the ears
As with deafness, ringing in the ears or tinnitus, can be a disabling condition although there is currently no scientific definition of the level the ringing must reach to be considered disabling.
Being "hard of hearing"
Again according to the WHO, being hard of hearing encompasses the categories of mild, moderate and severe hearing loss, but stops short of actual deafness.
Having a sensitivity to noise
Noise sensitivity is a different class of problem. It commonly involves people who have an adverse physical or emotional reaction to loud noises and thus may involve considerations other than simple auditory issues.
It is important to remember that these conditions need not be caused by noise conditions in the workplace. In fact, a childhood illness may cause the hearing loss and the adult employee will still be protected. The consideration for ADA purposes is not what caused the condition but what can be done to ameliorate its effects so the employee can perform her job.
What About Smaller Businesses?
Lest mom and pop shops think they're off the hook because they do not employ the requisite 15 workers to fall under the ADA, many states have disability discrimination laws that apply to them. New Jersey has such a law in its catch-all Law Against Discrimination where there is no minimum number of workers to require employee protections. The disability provisions of the LAD generally track those of the ADA.
If Hearing Loss Is Mitigated by a Corrective Device Is the Employee Still Protected by the ADA?
In a word, yes. Even if the employee's hearing is helped by a hearing aid or cochlear implant, disability status is judged by the employee's unaided condition.
Similarly, if the employee has a past history of hearing loss, or the employer believes that the employee has hearing loss, the ADA protections still apply.
What's an Employer To Do?
Complaints about compromised hearing have to be taken seriously. Both the ADA and the New Jersey Law Against Discrimination view physical conditions liberally, that is, in favor of protecting them from discrimination. While not every condition is disabling under the law, when informed of hearing problems the information should be taken seriously and evaluated promptly and objectively.
Next time we will look at how to handle job applicants with hearing loss.