Partially Deaf Worker May Require Accommodation
By Ruder Ware Alumni
May 20, 2014
I wrote several blogs about potential areas of new disability claims relating to the use of caffeine and a new mental health disorder that may affect non-productive employees. A recent federal court case held that a partially deaf retail store pharmacy technician was entitled to file a disability claim when her employer placed the employee on indefinite leave because of difficulty in using the telephone at work. The employee suffered ear pain from a surgery on her “good” ear and could not effectively use the telephone because of the recent surgery and the pain caused when putting the phone to her ear. The employee was born deaf in one ear and suffered this limitation on the use of her other ear due to the surgery. The federal district court concluded that she suffered from an actual disability under the Americans with Disabilities Act Amendments even though each impairment on its own may not have substantially limited her ability to perform work.
The court concluded that indefinite leave was not a reasonable accommodation when the employee was placed on leave of absence without pay because of her medical condition. The employee was able to show that she could handle telephone work even though she did not put the telephone directly on her ear, but the employer did not allow this accommodation to be used to allow her to continue to work.
Employers must be careful not to move immediately to a leave of absence without pay if there is an accommodation that will allow an employee to perform their work duties without significant interference with the performance of those duties. This is especially true in Wisconsin where courts have held that the employer must do everything possible to allow an employee to continue to perform work, even to the point of assigning job tasks mainly performed by that employee to others to allow the employee to continue to work. Employers should take the time to consider possible accommodations and make a record if there are no accommodations that will allow the employee to be productive in the workplace.
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