July, 2023

EEOC Guidance Provides Pathways and Considerations for Accommodating the Hearing Disabled

I currently stand on a precipice, as the waning days of Disability Pride Month this July also represent a final countdown to when a cochlear implant surgery will make me a bionic woman.  It appeared an opportune time to review the recent updates to the EEOC’s guidance on Hearing Disabilities in the Workplace and the Americans with Disabilities Act.  While familiar principles of disability accommodation law resonate throughout the guidance, the details and examples are a helpful resource for employers that are not familiar with the challenges and range of assistive options for those who qualify as hearing disabled.

Hearing Disabilities Are Broader Than Being Deaf

The guidance begins by explaining that people with a variety of hearing conditions may have ADA disabilities if they are substantially limited in hearing or another major life activity.  From personal experience, the ability to discern spoken language can be significantly impacted even if an audiology report does not register as deafness.  Hearing loss and conditions like tinnitus (ringing in the ear) and sensitivity to noise can impede the ability to engage in conversation at networking events, social functions, or other large gatherings, or in loud workplaces.  Where a hearing condition is not obvious, the EEOC guidance makes clear that an employer can ask for medical documentation, but only to confirm that a covered disability exists and what accommodations may be needed, not to ascertain the cause or nature of the impairment.

An Employer Can Ask About Hearing Issues if They Appear to Impact Performance

Employers generally should not be asking employees about their medical conditions.  However, the EEOC guidance notes that if an employer knows an employee’s medical condition or has observed symptoms of a condition and reasonably believes the medical condition or those observed symptoms are causing performance problems, the employer can inquire further for purposes of discerning whether the employee needs a reasonable accommodation.  The EEOC offers the example of an employee who wears a hearing aid and had been a consistently good performer in an administrative position prior to being promoted to a new role that involves considerably more time on the phone.  If the employee’s performance has declined because she is making many mistakes with customer orders she records over the phone, the employer can ask whether she has difficulty hearing on phone calls and ask whether she would benefit from an accommodation.  The employer could not ask those questions, however, if the performance issues the employee demonstrated were typographical errors, lateness, or other issues having nothing to do with hearing.

Hearing Impairments May Warrant a Range of Accommodations Short of a Sign Language Interpreter

There may be times when providing a sign language interpreter is a reasonable accommodation for an employee or group of employees who are hearing impaired.  But not every hearing impaired individual understands American Sign Language (ASL), particularly if the impairment developed later in life, and for some employers the cost of an interpreter may be prohibitive to the degree of presenting an undue hardship.  There are, however, a range of other, often less expensive, accommodations that employers may consider for those with hearing disabilities, including:

  • Blue-tooth enabled or other hearing aid or cochlear implant-compatible technology to connect to telephone headsets and sound systems;
  • Non-auditory safety alerts, like strobe lighting or vibrating pagers for emergency notification systems;
  • Other assistive software and technology, including video remote interpreting, automated captioning, telephone amplifiers or adapters, captioning features on virtual meeting platforms, voice carry-over/captioned or text telephones, and voice recognition or sound detection software;
  • Equipment for hearing protection to block noise or protect hearing function;
  • Assistive listening devices that translate voice into text and vice versa;
  • Appropriate written memos and notes, especially for brief, simple or routine communications;
  • Work area adjustments, such as away from a noisy area;
  • Time off as needed for treatment or adaptive services;
  • Altering marginal job functions; and
  • Reassignment to a vacant position.

Several of the EEOC’s illustrative examples make the point that accommodations need to enable the hearing disabled employee to participate fully in the workplace.  Accommodations like providing notes or the summary of a meeting when a deaf employee has requested a sign language interpreter would not be a reasonable alternative if the deaf employee is unable to ask questions and participate in discussions at the meeting.  Technology advances have been substantial, including services like video remote interpreting, and can facilitate participation in more cost-effective ways than was possible in years past.

Safety Concerns Should Be Based in Fact, Not Assumptions

The EEOC cautions that employers may exclude an individual with a hearing disability from a job for safety reasons only when the individual poses a direct threat, meaning a significant risk of substantial harm that cannot be resolved through a reasonable accommodation.  The examples offered by the EEOC reflect that sometimes presumed safety risks can be addressed with the addition of simple visual aids or by leveraging technology, such as a visual alert on a smartwatch or vibrating pager with a light signal.  The solution may not be obvious to the employer, which is why consulting with the employee or a service like the Job Accommodation Network (JAN) can be helpful.

A Final Personal Note

Many accommodations that can be provided to a disabled employee, including those with hearing disabilities, involve little or no cost to the employer.  Flexibility in seating or work location, left-sided vs. right-sided headsets for those with single-sided deafness, permission to access the closed captioning services on software like Zoom and now available on Apple’s iOS, and patience in being asked to repeat, write or text something that was not heard the first time, particularly when in a loud environment, can make an appreciable difference in enabling those with hearing disabilities to fully and successfully participate in the workplace.

The EEOC notes that approximately 15 percent of American adults report some trouble hearing.  If you are not one of them or have not closely engaged with someone in that category, it can be difficult to understand the range of contexts in which hearing difficulties may be impacted, and also to know the options for addressing those difficulties.  Get advice and leverage the EEOC’s guidance and resources like JAN (which is free) for further information.

By Tracey I. Levy


July, 2023

Similar Standards Now Apply When Considering Accommodation Requests for Religion or Disability

Employers need to consider employees’ requests for religious accommodations from a much more supportive perspective as a result of a recent decision from the U.S. Supreme Court.  In Groff v. DeJoy (June 29, 2023) the Court held that that an employer denying an employee’s request for a religious accommodation must demonstrate that the requested accommodation would impose a “substantial burden” in the overall context of the employer’s business.  The Court’s holding modified long-standing guidance from the Equal Employment Opportunity Commission (EEOC) and nearly 50 years of prior court decisions that had imposed a lesser accommodation standard.

The Situation Considered by the Court

The Supreme Court considered the issue in the context of a complaint filed by Gerald Groff, who had a mail delivery job with the U.S. Postal Service.  Groff is an Evangelical Christian who believes that Sundays should be dedicated to worship and rest, not work.  His mail delivery job initially did not involve much work on Sunday, but then changed to include Sunday deliveries for a contract for Amazon. Groff transferred to a different station that did not require Sunday deliveries, but that station then changed to include Sunday deliveries.  Groff continued to refuse working on Sunday and received progressive discipline for not doing so until he resigned. Groff asserted that USPS should have accommodated his religious observance.

The Legal Context and the Court’s Analysis

The Supreme Court last addressed the standard for a religious accommodation request back in 1977, in that case (Trans World Airlines, Inc. v. Hardison) involving a Saturday Sabbath observer seeking an accommodation from his employer, TWA.  In that opinion, the Court stated that, “[T]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.”  Subsequent decisions by lower courts have applied a “de minimis cost” standard to requests for religious accommodation, which often has meant denying the accommodation requests, particularly for accommodations that might require hiring additional workers or paying other employees overtime to provide coverage.

In Groff, the Supreme Court stated that its “de minimis” reference in the earlier TWA case was taken out of context and should not be regarded “as the authoritative interpretation of the statutory term ‘undue hardship.’”   While cautioning that it was not writing “a blank slate” in determining religious accommodations, the Court held that “hardship is more severe than a mere burden,” and should include consideration of all factors at hand, in the context of each accommodation request, and the practical impact relative to the size and operating cost of the employer.  The Court further emphasized that the obligation is not merely to assess the reasonableness of a particular accommodation, but also to consider alternatives that may address the employee’s need without presenting an undue hardship. For a Sabbath observer, that may include considering the feasibility of voluntary shift swapping if forcing other employees to work overtime would be an undue hardship.

Where that Leaves Employers

This does not present unfamiliar territory for employers, just a different context.  The Groff decision means that employers need to give more careful consideration to employees’ requests for religious accommodations.  The “substantial” burden standard now set by the Supreme Court for religion cases appears to be very similar to the standard employers have already been applying with regard to requests for accommodation under the Americans with Disabilities Act (ADA).  The EEOC’s guidance on the ADA provides that accommodations that impose significant expense or difficulty may present an undue hardship when considering factors such as:

  • the employer’s size and financial resources,
  • the nature and structure of its operation, and
  • the impact of the accommodation on operations.

Employers should now be evaluating requests for religious accommodation with consideration of those same factors.

By Tracey I. Levy


July, 2023

All New York Employers Need to Add Policies and Modify Practices to Comply with New State and Federal Protections for Employees Expressing Breast Milk

Five years after New York City began requiring employers to provide accommodations for employees expressing breast milk at work and adopt lactation accommodation policies with very specific provisions, New York State has added its own law on the subject.  The state law, which took effect June 7, 2023, imposes a new layer of requirements that impact even the most scrupulous of New York City employers.  Both the state and city laws are more expansive than, but operate within the context of, a nationwide requirement that employers provide reasonable break time and a private place other than a bathroom in which a nursing employee can express breast milk.

Requirements with Regard to Break Time

Federal law requires employers to provide breaks to employees to express breast milk for the first year after childbirth, at regular intervals and on a schedule that is flexible enough to accommodate the employee’s varying pumping needs over time.  Employees working remotely are similarly entitled to this break time to express breast milk in their homes.  The breaks generally need not be compensated unless the employee is not completely relieved of duty, the breaks are for less than 20 minutes, or the employer otherwise provides paid break time.

New York State builds on these requirements in several respects.  First, employees are entitled to accommodation for up to three years after childbirth under the state law (New York City law has no defined end date to the accommodation).  Second, a model policy issued by the state as the minimum compliance standard requires that employees be granted breastfeeding breaks at least once every three hours, if requested.  Third, the state’s model policy presumes a 20-minute unpaid break period and requires minimum break periods of 30 minutes to include travel time if the designated lactation room is not close to an employee’s work area.  Fourth, the state’s model policy provides that employees can make up the unpaid break time spent during the day by working before or after their normal shift if the time falls within the employer’s normal work hours.

Requirements with Regard to Location

Employers at the federal, state and New York City level must start from the premise that they should be seeking space that can be used for expressing breastmilk that meets the following minimum requirements:

  • it cannot be a bathroom;
  • it should be in reasonable proximity to the employee’s work location;
  • it includes a place to sit and a flat surface (table or counter) on which to place the pump and related items;
  • there ideally is access to electricity (New York City requires this unless it imposes an undue hardship, while state and federal law recognize it may not be feasible in all work locations);
  • there should be nearby access to running water;
  • there is access to refrigeration (New York City requires this, absent an undue hardship) or at least a space to safely store the breast milk; and
  • the space is reasonably private so as to ensure the employee will be shielded from view and intrusion.

New York State’s model policy also addresses windows and lighting – that there should be adequate artificial or natural lighting, and any windows should have coverings.   New York State also imposes some additional, very specific requirements with regard to privacy.  Ideally, the space should be a separate room with a working lock on the door.  If that is not feasible, then a cubicle can be designated for usage as a last resort, but the walls must be at least seven feet tall, the cubicle must be fully enclosed, and a sign needs to clearly indicate when it is in use.

The state’s model policy states that a single room may be made available to more than one employee at a time and the state does not dictate any parameters with regard to privacy among the employees who may be using the space simultaneously.  New York City employers should note, however, that the city expects employers to discuss options with all employees who use the shared space, including finding alternative space, sharing the space with screens, curtains or other privacy measures, or creating a schedule for use.

Requirements with Regard to a Written Policy

New York State and New York City both require employers to distribute to employees written policies with regard to the right to express breast milk in the workplace.  These policies are very prescriptive in their language.  New York City requires that the policy specifically address how to request access to a lactation room; the employer’s obligation to respond to a request within no more than five business days; and a procedure for when two or more individuals need to use the room at the same time.

New York State’s model policy on employee rights is even more prescriptive, and touches on different points.  The state’s policy does not dwell much on the process for requesting access, beyond a requirement that the employee provide reasonable advance notice in writing and that the employer respond within five days.  Rather, the focus of the state’s model policy (which is three pages in length), is on providing context to the accommodation requirement.  The model policy delineates all the requirements with regard to break time, the dedicate space for breast milk expression, and providing notice to employers.  It also advises employees of their legal rights with regard to expressing breast milk, with reference to other federal and state wage and hour laws, and it provides resources and contact information for employees to file a complaint with the Department of Labor if they believe their rights under the law are not being honored.

The state Department of Labor refers to its policy as the minimum required of employers to be in compliance with the law.  Practically speaking, the length of the policy, and the state’s expectation that it will include delineation of all the requirements with regard to break time and outfitting a dedicated space, make it ill-suited for inclusion in an employee handbook.  The law does not actually require that the policy be included in a handbook, but rather that it be distributed in writing to employees at three intervals: upon hire, once annually, and when an employee returns to work following the birth of a child.  Given those requirements, employers may want to simply adopt the state’s model policy for this purpose and distribute it to employees at the appointed occasions.

By Tracey I. Levy


June, 2023

Geographic Distances Disappear When Determining Remote Workers’ FMLA Eligibility

One of the more enduring effects of COVID has been the dispersion of employees to jurisdictions that may be far outside the employer’s anticipated commuting distance.  Remote work enables organizations to retain employees who relocated for various personal reasons, and increasingly I encounter businesses of all sizes that are intentionally drawing from a national (or even international) recruiting pool to attract the best talent.  The challenge in all this is that our legal system is not structured to offer employers much by way of consistency in obligations across jurisdictions.

Employers particularly face an incongruity when determining what leave laws apply to their remote workers.  In general, employers should presume that remote workers will be entitled to the benefit of whatever statutory leave laws exist in the state in which the worker is working remotely, which is typically the worker’s state of residence.  Remote workers may, however, additionally be entitled to leave benefits that are mandated by the law of the state and/or locality in which the employer is located, including possibly the organization’s U.S. headquarters or the office location to which the employee is most directly connected for work assignments and supervision.

New DOL Guidance Addresses FMLA Leave for Remote Workers

New guidance issued by the U.S. Department of Labor (DOL) similarly states that a remote worker’s affiliation to an office location should be considered for purposes of determining the employee’s eligibility for leave under the federal Family Medical Leave Act (FMLA).  The FMLA only applies to eligible employees if there are 50 or more employees working within 75 miles of the requesting employee’s worksite, a criterion that often is not met by remote workers.  The new DOL guidance directs, however, that for FMLA eligibility purposes, the employee’s personal residence is not a worksite.  Rather, the worksite for FMLA eligibility purposes is the office to which the employee reports (meaning the physical location to which the employee would go to perform work, were the employee not working remotely) or from which the employee’s assignments are made (meaning, for example, the location in which the employee’s manager works).

From a pure geography perspective, the DOL guidance renders the 50 employee/75 mile radius threshold meaningless.  Employers that are evaluating an employee’s FMLA eligibility cannot simply rely on a headcount report of employees physically located within a particular geographic area.  Rather, the employer needs to map the requesting employee to the appropriate worksite and identify all other employees who map to that same worksite or other worksites within a 75-mile radius.

The DOL provides an example of a data processor, who is one of many individuals working from different cities and states, all reporting to a single manager at headquarters.  If there are more than 50 total employees working within 75 miles of the company’s headquarters, that data processor will be covered by the FMLA even if the data processor is not physically located within 75 miles of the company’s headquarters.

Plan in Advance

Employers that exceed the 50-employee threshold on a national level should, therefore, review the geographic breakdown of their workforce and align all remote workers to a physical worksite.  Conducting this analysis in advance of a leave request, and notifying employees of the location to which they are officially aligned, provides clarity and greater ease of administration at the time a leave request is made.

By Tracey I. Levy


May, 2023

NYS Has Raised the Stakes for Employers That Penalize Employees for Any of 15 Types of Job-Protected Leaves

Employers in New York may be required to provide employees with up to 15 different types of leave, some paid, and some unpaid, some for a few hours, and some extending weeks or even months. Employers are generally aware of certain big categories of obligations with regard to providing employees with time off, like family medical leave and sick leave. But there are a host of other leave categories that may be unfamiliar to them.  A recent change to the New York State Labor Law has raised the stakes for employers to know when employees are entitled to leave and ensure that employees are not penalized for taking time off for a legally-protected reason.

Categories of Leave for NYS Employers

As a quick reference point and reality check, the full panoply of leaves available to employees in New York State include the following:

  • paid/unpaid sick leave;
  • paid family leave;
  • paid/unpaid COVID quarantine leave;
  • partially paid leave for jury service;
  • paid time off to vote in elections;
  • paid/unpaid time off for blood donors;
  • unpaid leave under the federal Family and Medical Leave Act;
  • unpaid leave for military service;
  • unpaid leave taken as a reasonable accommodation of a medical condition, religion, or for pregnancy, childbirth or related conditions;
  • unpaid break time for nursing mothers;
  • unpaid leave for victims of domestic violence, sexual assault or human trafficking (some localities in New York State require paid time off for this purpose);
  • unpaid leave to testify as a crime victim;
  • unpaid family military leave;
  • unpaid leave for bone marrow donors; and
  • unpaid leave as a first responder.

Variations in whether an employee needs to be paid for the time off, as noted above, generally depend on the size of the employer.  Also, some of the leave laws apply to employers of any size, while many others do not become applicable until the employer has a minimum of 10, 20 or more employees, depending on the specific law.

NYS’s New Restrictions on No-Fault Attendance Policies

New York State has adopted an additional enforcement mechanism to protect employees who take time off that is legally protected under federal, state or local law.  The New York State Labor Law was amended earlier this year to provide that employees cannot be retaliated against for using any “legally protected absence.”  The new law defines it as “retaliation” for employers to assign points or demerits against employees for being absent from work for a legally-protected reason, where those points can then result in disciplinary action, delay or denial of a promotion, or loss of pay.

Pitfalls for Employers

Employers that fail to grant employees time off and satisfy other requirements already face liability under the respective leave laws. In addition, if an employee is absent from work for a reason that is protected under one of those laws, and the employee is then penalized in some fashion for that absence, the employer now may face additional liability under the Labor Law, including penalties starting at $1,000 and going as high as $20,000 for each employee penalized, an award of liquidated damages, and an order rehiring or reinstating the employee together with lost pay or an award of front pay in lieu of that.  Individuals can also file a civil action for violating the retaliation prohibition, and recover liquidate damages of up to $20,000, costs and reasonable attorneys’ fees.

Consider Adopting Precautionary Measures

Employers should confirm with legal counsel which of the leave laws actually apply to their employee population.  Employers that have robust employee handbook policies, that reference each of the applicable categories of legally protected leave under New York law, may be able to rely on that reference point to provide notice to employees.  A handbook can also serve as a resource for managers to ensure they are properly applying the leave of absence policies.

Employers with less robust handbook policies, or none at all, have additional hurdles to achieve compliance.  Managers need to be schooled in the range of leaves available, and know to seek advice whenever there is any question whether a request for leave is for a job-protected reason.

In addition, systems that are used to track employee attendance should be designed to include fields that capture the range of legally protected absences that an employee might take. That way the employee has the right place to code the absence to reduce the risk that it will be improperly counted against a no-fault attendance policy.

By Tracey I. Levy

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