We’ve got a fork truck driver whose hearing is so bad that he can’t hear people shout at him, and he can’t hear warning honks. We think he’s a real danger to other workers. What can we do? — Joel, HR Manager in Merced
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This is a tricky issue. You obviously can’t continue having this employee endanger others—and himself—at work.
The first question in any disability situation is whether the impairment is a disability within the meaning of the law. A hearing impairment is a disability under the federal Americans with Disabilities Act (ADA) if: 1) it substantially limits a major life activity (under California law, an impairment or medical condition that makes the major life activity “difficult” is enough to qualify for protection); 2) it substantially limited a major life activity in the past; or 3) the employer regarded (or treated) the individual as if his or her hearing impairment was substantially limiting.
The determination of whether a hearing impairment is substantially limiting or makes a major life activity more difficult must be made on an individualized, case-by-case basis. Note that under California law, this determination is made without regard to mitigating measures, while under federal law, mitigating measures are taken into account.
It’s tricky to find out about hearing conditions because the ADA severely restricts the circumstances under which an employer may obtain information about an employee’s medical condition or require an employee to undergo a medical examination. However, if you, as an employer, have a reasonable belief based on objective evidence that an employee’s medical condition is causing performance problems, or may pose a direct threat to the employee or others, you may ask questions about the impairment or require a medical examination.
However, if you do not have a reasonable belief that an employee’s performance problems are related to a hearing impairment, you may not ask questions about the impairment. Instead, you should handle the situation in accordance with your policies that apply to poor performance. Employers are required to provide adjustments or modifications that enable qualified people with disabilities to enjoy equal employment opportunities unless doing so would cause undue hardship (i.e., significant difficulty or expense).
Dealing with Safety Concerns
Now to the question at hand. If an employee poses a “direct threat”—a significant risk of substantial harm to him or herself or others—when working in a particular position, even with a reasonable accommodation, an employer can prohibit him or her from performing that job. Any potential harm must be substantial and likely to occur.
You should not arbitrarily remove your fork truck driver from his job just because he is hard of hearing. Engage in the ADA’s interactive dialogue in light of the criteria above. You are required to work with the employee to come up with some sort of reasonable accommodation. Consider various assistive devices, warning systems, and so on. Be sure to document these discussions. If you can’t show that you engaged in the interactive process, you will be at a disadvantage in court. Finally, as you work through this challenge, remember that harassment and retaliation based on hearing loss are prohibited.
The federal Equal Employment Opportunity Commission (EEOC) has recently published a fact sheet on this topic: “Questions and Answers About Deafness and Hearing Impairments in the Workplace and the Americans with Disabilities Act.” The fact sheet is available at the EEOC website. — CELA Editors