Hey everyone! I know you’re used to Ask HR Bartender being in a video format but this reader question was a unique one and I wanted to get some help with the answer. So I decided to put the response in writing. Here’s the question:
I’m completely deaf in one ear. I recently got a new job and the only available desk is one where I can’t hear anyone who comes up with advice, questions, training, etc. I don’t want to complain, but it’s become really annoying that for everyone who comes up to my desk I have to turn my head completely around to hear anything they have to say.
Since I started this job, my neck has started to cause me a lot of pain. Maybe I’ve always just been lucky and never had a job where my deaf ear was facing an aisle, where people would come up to me to talk. I have brought this up with my boss but he just ignores me.
Interesting situation, eh? I thought so too. So I called up one of the best employment attorneys I know, Eric B. Meyer with the firm Dilworth Paxson LLP in Philadelphia to answer a few questions about this situation.
Eric, I’m sure everyone wants to know. Is this an ADA issue?
Under the ADA, you have a disability if you have a physical or mental impairment that substantially limits a major life activity. The ADA defines hearing as a “major life activity.” Therefore, the law considers someone who cannot hear as disabled. However, for this to be an “ADA issue,” the employer must be covered under the ADA. An employer is covered under the ADA if it has 15 or more employees. Assuming the employer here has 15 or more employees, then this is an “ADA issue.”
(Since the info above is all we have) If the company fell under the requirements of the ADA, what are the obligations for the company? And for the employee?
In this situation, the company has no obligations under the ADA unless it knows that the employee is disabled and seeks a reasonable accommodation. A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. Generally, the onus is on the employee to inform the employer that an accommodation is needed.
If an employer receives a request for a reasonable accommodation, the employer should speak with the individual to clarify what the individual needs and identify the appropriate reasonable accommodation. The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. This includes asking what type of reasonable accommodation is needed. Ultimately, the employer must provide a reasonable accommodation — although not necessarily the employee’s choice of accommodation — unless it can show that the accommodation would be an undue hardship. An “undue hardship” would require significant difficulty or expense.
It sounds like the situation here can be resolved by having the employee switch desks with someone who faces another direction. I can’t imagine that would create undue hardship for the employer.
And, if the company doesn’t fall under the requirements of the ADA, are there things that can be done?
If the ADA does not cover this employer, it is possible that the employer may be covered under a similar state or local law with a lower employee threshold. For example, in Pennsylvania, employers with 4 or more employees are covered under the Pennsylvania Human Relations Act, the state equivalent of the ADA. In Philadelphia, all it takes is one employee.
However, assuming the employer is not covered under any federal, state, or local law that requires it to furnish a reasonable accommodation, it can still accommodate the employee by switching the employee’s desk. Treating employees with kindness and respect, even though not obligated to do so by law, goes a long way. It also sounds to me like switching desks may make the hearing-impaired employee not only happier, but also more efficient.
My thanks to Eric for offering some education and information regarding this matter. If you are interested in reading more of Eric’s insights, be sure to check out his blog at The Employer Handbook or you can follow him on Twitter.