ADA and hearing aids

ashandley · August 2003

We have a firefighter who requires the use of a hearing aid and we as the employer have been made aware of this through the employee himself, so it is a known fact that he wears a hearing device. The firefighter however comes to work without the hearing aid on many ocassions, and simply states that he forgets it. This situation causes a serious safety issue as he then goes to the fire scene and cannot hear the commands given by other officers who generally are at a distance and using radios and other devices to communicate. The other officers are concerned for their safety as well as the safety of the firefighter who does not have his hearing aids. We are considering this to be a performance issue and will begin to document when he forgets to wear the hearing aid, and will not allow him to go to the fire call unless he retrieves the hearing aid, due to safety concerns.

Is this an appropriate action for us to take?

Additionally, there is another situation with this same firefighter where he refuses to wear his hearing aid, not just forgets it, but refuses to wear it when he has a headset on which is a communication device giving out different tones to decipher to operate the fire truck. His reason for refusing to wear his hearing aid in this situation is that he states it causes high pitch noises in conjunction with the tones, and makes his hearing worse, however, he also cannot hear the tones, therefore he is unable to operate the fire truck in a safe manner.

In this scenario, our plan of action will be to advise him this again is a very serious safety concern in the line of work that he does, and if he won't wear the hearing aid, and can't hear the tones, then what does he propose to do to remedy the situation. If he has no answer, then we will require him to be evaluated by our occupational physician to determine what if anything can be done for him to continue to perform his job in a safe manner.

Is this an appropriate action for us to take?

Thanks in advance for any advice you can share with me.

SMace · August 2003

I'm not an ADA expert, I'll defer to Hatchetman, but it sounds to me you are right on the money.

Margaret Morford · August 2003

I would meet with him first to explain that if he forgets his hearing aid again, you "will be forced" to write him up because he is a safety risk to the rest of the crew. This reminds him that it's his behavior that is causing you to have to right him up and it prevents him from arguing that he'd never been written up before for forgetting it. I would also send him home to get the hearing aid and not permit him to work an entire shift without it.

Margaret Morford
theHRedge
615-371-8200
[email]mmorford@mleesmith.com[/email]
[url]http://www.thehredge.net[/url]

Don D · August 2003

I agree with Margaret. Tell him in writing that he will not be allowed to report to, or remain at work unless he wears the hearing aide. I would not wait till the alarm bell goes off to determine if he meets safety standards. A safety standard for this particular employee is 'wearing hearing device that allows him to perform his job and meet employer's safety program requirements'.

I can understand his saying the device in some circumstances causes an unbearable screeching. I have old relatives. I agree with your plan to let your occupational physician deal with this one. Get a written plan from that physician and allow no deviation from it. The physician must be real familiar with the hearing condition, the specific demands of the job, the equipment in use, the headset, the decibel level, etc.

I can't understand why the employee would be jerking you around. If he wants to be a firefighter and can do the job with hearing aids, then why won't he wear them? Safety in this situation cannot ever depend on hand signals and lip reading and following the running actions of others. Get him in line or send him packing. Don't forget to involve the department head and city attorney.

Hatchetman · August 2003

Since you mention ADA, I will assume that you've determine that absent his hearing aid, the idividual is signficantly impaired in hearing and would otherwise be considered ADA-disabled.

I agree with the others. The basic issue hear is whether or not he poses an undue risk to himself or others in the performance of his duties by not wearing the hearing aid (when he fails to take it to work). You are free, under ADA, then to hold him accountable for not wearing it to work.

The issue of his refusal to wear a hearing aid when he wears a headset has more to it even though it still results in whether the emplyee is able to perform an essential duty without undue risk to himself or others absent reasonable accommodation.

This is where "mitigating measures" come in. Remember, the employee is hearing-impared in at least one ear and is unable to perform the essential duties of the job without reasonable accommodation. But since he has a hearing aid that allows him to hear, then he is considered under federal law, not to need reasonable accommodation. He is not considered "disabled" under ADA becuase the hearing aid apparently corrects the otherwise substantial impairment in hearing.

However, in this case, there is a specific reason the employee does not wear the hearing aid. His refusal to wear the hearing aid because of the high pitched distracting noise may could be seen as a reasonable basis for such a refusal and thus, his status would be as a disabled employee who needs reasonable accommodation when he wears a headset. There is court ruling to support that concept.

There may or may not be reasonable accommodation for that. But don't put the burden on him only (assuming the issue of his sporadic failure to wear the hearing aid in the first place is resolved). You, as the employer also have a burden, as part of the "ADA interactive process" to evaluate whether or not there is a reasonable accommodationn that would allow him to get the same information that he would get over the headset within the same timeframe, by using a special headset, or some other mechanism.

If there is a special headset or other device or equipment or procedure that is not an undue hardship to obtain it or implement, then that would be the employer's responsibility. If there is not a device equipment,or some other procedure or there would be an undue hardship, then you wouldn't have to provide the reasonable accommodation and you could remove him from that job -- where hearing over the headset is an essential function -- by giving him another job, even at less pay and less duties where that would not be an essential function.

cebudragonlady · August 2003

We CANNOT assume that a hearing aid would fully or apparently correct the firefighter's substantial impairment in hearing, and ADA still might apply!!! As one who wears a hearing aid myself, I can tell you that not even the best instrument will fully correct an impairment. Even under the best of clinical circumstances -in a sound-proof booth with no background noises, my instrument allows me to only hear 80% of normal...and with background noise a every day reality , it is less than that.

Chari

NJODM · November 2003

>Since you mention ADA, I will assume that you've
>determine that absent his hearing aid, the
>idividual is signficantly impaired in hearing
>and would otherwise be considered ADA-disabled.
>
>I agree with the others. The basic issue hear
>is whether or not he poses an undue risk to
>himself or others in the performance of his
>duties by not wearing the hearing aid (when he
>fails to take it to work). You are free, under
>ADA, then to hold him accountable for not
>wearing it to work.
>
>The issue of his refusal to wear a hearing aid
>when he wears a headset has more to it even
>though it still results in whether the emplyee
>is able to perform an essential duty without
>undue risk to himself or others absent
>reasonable accommodation.
>
>This is where "mitigating measures" come in.
>Remember, the employee is hearing-impared in at
>least one ear and is unable to perform the
>essential duties of the job without reasonable
>accommodation. But since he has a hearing aid
>that allows him to hear, then he is considered
>under federal law, not to need reasonable
>accommodation. He is not considered "disabled"
>under ADA becuase the hearing aid apparently
>corrects the otherwise substantial impairment in
>hearing.
>
>However, in this case, there is a specific
>reason the employee does not wear the hearing
>aid. His refusal to wear the hearing aid
>because of the high pitched distracting noise
>may could be seen as a reasonable basis for such
>a refusal and thus, his status would be as a
>disabled employee who needs reasonable
>accommodation when he wears a headset. There is
>court ruling to support that concept.
>
>There may or may not be reasonable accommodation
>for that. But don't put the burden on him only
>(assuming the issue of his sporadic failure to
>wear the hearing aid in the first place is
>resolved). You, as the employer also have a
>burden, as part of the "ADA interactive process"
>to evaluate whether or not there is a reasonable
>accommodationn that would allow him to get the
>same information that he would get over the
>headset within the same timeframe, by using a
>special headset, or some other mechanism.
>
>If there is a special headset or other device or
>equipment or procedure that is not an undue
>hardship to obtain it or implement, then that
>would be the employer's responsibility. If
>there is not a device equipment,or some other
>procedure or there would be an undue hardship,
>then you wouldn't have to provide the reasonable
>accommodation and you could remove him from that
>job -- where hearing over the headset is an
>essential function -- by giving him another job,
>even at less pay and less duties where that
>would not be an essential function.

ADA and hearing aids

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