Question: One of our employees has expressed that she is having difficulties hearing. Her primary job duties require her to be on the telephone approximately 90 percent of the time. We have no other positions available for transfer. Can we terminate this employee?
Answer: The Americans with Disabilities Act (ADA) requires that private employers with 15 or more employees provide reasonable accommodations for qualified employees with disabilities. Under the act, to be considered as “qualified,” the employee must be able to satisfy the skill, experience, education, and other job-related requirements of the position sought or held, and be able to perform the essential job functions of the position, with or without reasonable accommodation. Under the act, to have a disability the individual must have an impairment and the impairment must substantially limit one or more major life activities. For example, to be able to hear is a major life activity. An individual can also meet the ADA’s definition of disability by having a record of or being regarded as having an impairment.
An employee may request a workplace accommodation when she or he realizes there is a workplace barrier that is preventing her or him, due to a disability, from competing for a job, performing a job, or gaining equal access to a benefit of employment. According to the Equal Employment Opportunity Commission (EEOC), an employee only needs to let her or his employer know that she or he needs an adjustment or change at work for a reason related to a medical condition. An employee can use plain English to make the request and does not have to mention the ADA or use the phrase “reasonable accommodation.”
In this specific scenario, the employer should consider the employee’s notification of her inability to hear as an ADA request for accommodation. The employee has provided notification that she has difficulty hearing and is struggling with performing an essential duty of her job. The employer should begin an interactive process with the employee to determine her needs, collect supporting medical information, and exhaust all means to provide an accommodation. The employer may also require medical certification that supports the employee’s request for equipment to improve her ability to hear while working.
Employers must be mindful that accommodations often have associated costs. For instance, if the employee’s current telephone does not allow for an amplification device, the employer may need to consider another type of telephone or headphones that eliminate background noise or provide a higher quality of auditory output. Employers should be cautious not to deny an employee’s request for accommodation until all potential solutions have been exhausted. For instance, an employee’s doctor may be able to provide guidance as to suggested devices as well.
Employers may deny an employee’s request for accommodation but must either exhaust all solutions to accommodate or determine that the accommodation would pose an undue hardship to the company. However, employers should seek legal counsel before implementing any such termination because termination for this reason could appear discriminatory. Finally, if an employer has a vacant position that the employee can fill, the employer should consider that as an alternative to termination; however, the ADA does not require that employers create a new position.
The following resources may be helpful in researching accommodations:
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