ADA and hearing aids
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I have an employee who wears hearing aids (stated on her application) She has been coming to work without her hearing aids and has not been performing up to par. Am I allowed to send her home until she can return with her hearing aids? We have a strict policy that employees can only work with no restrictions.
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I am assuming for the rest of my response that you do fall under ADA.
Regarding the employer's ability to require the employee to wear a hearing aid...the answer is no. But then you deal with the poor performance. You can't fire the employee because she doesn't wear a hearing aid.
But you can fire the employee for poor performance even if the performance results from a hearing loss under the following:
If the employee is wearing a hearing aid and that removes the substantial limitation to hearing, then under ADA and the US Supreme Court's ruling last year (the Sutton case) on mitigating measures, the employee may not be considered disabled. That is, even if the employee has a substantial hearing loss, but the hearing aid corrects it so that she hears as well as the "average person" then she would NOT be qualified for reasonable accommodation under ADA and would not technically be considered disabled. There is an exception to that, however.
If the reason for her not wearing the hearing aid is that it, in turn, results in significant impairment to hearing, for example, she has side effects of heairng noises in her hearing aid, you may then need to evaluate the impairment without regard to the use of a hearing aid.
This is a subtle problem -- when an employee refuses to use the mitigating measure that would eliminate the impairment. In my opinion, it's best if you make the individual assessment rather than just taking a blanket approach in determining whether or not the hearing aids removes the impairment. Courts seem to rely on that when evaluating the facts of the case and the rationale for the employer's action.
What you need to do at this point is start dealing with the poor performance as you would with any other employee. Then let her bring up the hearing loss issue. The poor performance may or may not be attributable to the hearing loss. Don't assume that it is at this point, unless there is a reaosnable link that can be made or unless she and the company have already made the link through a previous request for reasonable accommodation.
If she raises the issue about the hearing loss, then inquire about her use or non-use of a hearing aid at work. See what her explanation is. Perhaps the hearing aid really doesn't help her. Perhaps it's causing other affects that are just as debilitating -- e.g., picking up noises and such. In that case, as I said, you made need to make the aassessment without regard to the use of the hearing aid.
However, if the employee is just saying "I don't wear the hearing aid
because it doesn't look nice on me" or "I don't want people to know I have a hearing problem," then I don't believe that would be a sufficient justificaiton under ADA to not wear it.
If she is requesting a reasonable accommodation so that she can perform the essential duties of the job in a competent manner, on a claim that she is disabled and that the hearing aid causes significant side effects, then you can write to the doctor, with her written permission, to inquire whether or not she has has a hearing loss that substantially limits her hearing [of course, there may be another medical impairment, instead or in addition.] And how it limits is? And whether or not the employee has or uses any remedial or mitigating measures to limit or eliminate the impairment? And to what extent that is successful? -- or other problems that the doctor can speak to about the use of the hearing aid.
When you get the response back you should then have documentation to establish whether or not she is ADA qualified, or perhaps do a follow up with the doctor and certainly with her. You could then either proceed on the basis that she is not ADA qualified because she uses a hearing aid which eliminates the hearing loss (her refusal to use the hearing aid is strictly her decision but does not change her status IF there is no medical reason that the hearing aid wouldn't be successful) or you would then determine if you needed to make reasonable accommodation because of the hearing loss.
I say all this because you may need documentation down the road if she files an EEOC claim that you fired her despite your knowledge or regarding her as disabled -- hearing loss. You would want to show to EEOC that the employee wasn't qualified as ADA disabled because she had a remedy available to remove the impairment but that she voluntarily did not use it at work and the refusal was not caused by side effects that were just as significant as the hearing loss.
If you just proceed to fire her at this point because she is performing poorly resulting from loss hearing, you may be able to get away with it. But the odds of that are not substantial, in my opinion. So that it is better to get your "ducks" lined up and make sure your on firmer ground if EEOC comes acalling.
Besides going through the process may allow you and her to discuss her need to wear the hearing aid so that she could perform the essential duties of the job in a competent manner. This is where she would let you know the reason she is not wearing her hearing aid.
Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]
I concur that it would be beneficial to you to gather more information and talk to the employee about the performance problem. Hopefully if it is hearing related, the person will share the problem. Then document your efforts and results and deal with the performance issue based on your facts.
I concur that you should gather more information at this point. Talking to the employee is the best place to start but if the hearing aids are a recent addition, the person may still be going through denial and thinking they don't really need them. Speaking to her/him on the performance issue is the time the employee should share any personal information that may relate to the problem but don't be surprised if they don't. However, I feel it is their responsibility. You cannot be a mind reader.
Having said all that, let me offer input as a person who also wears hearing aids. One I have worn since 1982,sudden hearing loss at a relatively young age, and the other last year -a new one and a replacement one (my fourth replacement since '82) at a cost of $5,000-not cheap! let me advise you that until you have the problem, you can't understand hearing loss. I work in an office environment and find that meetings are expecially a problem for me in relation to keeping up with who is saying what and when more than one talks at a time, it is next to impossible to keep up. Fortunately, no one in our office plays a radio all the time as that also interferes with communication for me.
Hearing is not all about hearing the sounds of speech but more on understanding what you hear. Any noise whether it be background noise, copier or machinery running, others talking, etc. can distort the understanding of what a person is hearing. Other problems could be a sore in the ear, no matter how clean one is with hygiene, hearing aids can cause sores and it is sometime impossible to wear the aid until the sore heals. Batteries are expensive and the aids take 1 to 2 per week, your employee may be having a financial problem. Hearing aids only have an average life of about 5 years and are very expensive to replace. If there is a mechanical problem with the aids, they must be sent to the manufacturer for repair, this usually takes 1 week in my experience.
I don't know the working circumstances of your employee, if so I might could offer other insight, however if you want to write me direct, my email address is [email]helen_littlefield@polkworks.org[/email].
Not knowing your specifics, I only offer my input from one who has a hearing impairment. As for performance, I never believe that one should blame an impairment on poor performance. One should look for ways to overcome the impairment and do the job they are being paid for. As a boss, just please take the time to find out if there is a problem relating to the hearing loss before making judgment and if it is a temporary condition. Then deal with the problem of performance based on all the facts rather than what is on the surface.
So I agree, you need to talk to the employee and see what is going on - what he/she is feeling, or if their aids are creating sores or needing to be replaced or repaired. And genuinely listen...
instrument, which indeed is very expensive - a good hearing aid repair facility
can replace the entire inside instrumentation only...which only cost me $ 215 last July..and the instrument is as good as new even at six years old !