Hearing loss

Leslie

I have a gentleman who works for a sand and gravel operation (big huge, heavy, dangerous machinery) who has progressively lost his hearing to the point where he has none - they are writing his daily instructions. He has almost 5 years of service. Big problem - he's 80. Yup that's right - 80. Our ops manager has a huge safety concern but we're tip toeing around this. What's our approach folks?

HRsage

[font size="1" color="#FF0000"]LAST EDITED ON 03-04-03 AT 04:13PM (CST)[/font][p]I'll try to take a minor league swing at this one and wait to see what the others say. What are the essential functions of the job? I don't know if being 80 is that much of an issue as is his hearing loss. If it was a younger person who couldn't hear it would probably still be a safety concern based on what the job duties are. If vocal and audible communication is required for the best performance and safety of the individual and others then it might just be something that needs to be addressed. Just my thoughts.

Theresa Gegen TX

Age is not an issue that can be legally considered.

You have to consider whether he can do the essential function of the job, with or without reasonable accomodation in spite of his hearing loss.

The fact that you have been accomodating his hearing loss would lead me to believe that there is no barrier to you continuing to do so.

Before you take any adverse action against the employee, you need to hire an attorney an review the facts with her.

Good Luck.

Leslie

The employee's hearing has been getting progressively worse, to the point now he doesn't hear equipment backing up or coming at him from the side. He used to be able to hear loud noises - yelling, equipment beeping, etc. Now he can't. I added his age simply because I knew it would become an issue when we try to tell him his hearing has become a safety issue we can no longer deal with.

Don D

I wouldn't 'hire an attorney' at this point. This is no different from any other ADA/safety/accommodation/performance issue in the workplace and should be treated the same.

Balloonman

For very little money strobe lights can be added to equipment so the hearing issue is eliminated. They can also be used with sensor to alert vehicle operators of approaching pedestrians. Your maintenance/mechanical staff could handle it easily is my guess.
My $0.02 worth!!!!
DJ The Balloonman

Parabeagle

Please, please, PLEASE deal with this situation soon, Leslie. In 1987, I worked for a large co. that had a construction materials division, including sand and gravel. We had an employee (much younger than yours) with a hearing impairment that we were able to work around who worked in the yard. Long story short, he didn't hear the backup warning of a barrel truck, the barrel truck driver couldn't see him and we lost the hearing-impaired employee. It was one of the most tragic things I've ever seen.

SMace

I'll take a different angle. Is hearing protection required at this facility? If so, was he wearing hearing protection? I would imagine not. You now have a worker's comp case. If you don't know if hearing protection is required you need to do a noise study. After the fist one, these studies should be done every time your manufacturing process changes. If you do require hearing protection as the result of the noise assessment, you have to test their hearing every year and if you have a "STS" standard threshold shift, you have a recordable accident. I can give further explanation if needed.

Stephen

Leslie

No hearing protection - it's not a facility. It's a mine. Open pit. Loading, unloading, screening, refining.

SMace

I believe there are seperate OSHA requirements for mining, but as far as the general regs (29 CFR 1910.95, Table G-16, amended Aug. 1981 and March 1984)go it doesn't matter if it is a facility or not. If noise in any area of a business, that must comply with OSHA regs, is over 85db 8hr. time weighted average or 82db 12hr. TWA, hearing protection is required. As well as training, monitoring, etc. I would imagine the mining regs would not be less stringent.

Stephen

Leslie

OSHA doesn't count. Mines are under the auspicies of MSHA, and we are all over that - our mining has been in operation for more than 20 years.

I repeat, this is not work comp. It's a gentlemen who came to work for us with two hearing aids already in place, and now his hearing has totally failed. I just found a note in his file from 09/25/01 (when we were not in place as HR for this entity) saying communication was all but impossible and recommended termination. It's pretty tough to have notepad and pencil ready when you're driving a front end loader.

Parabeagle, my gosh - that's horrible! I'm e-mailing legal.

SMace

" I repeat, this is not worker's comp". I don't see where you said it's not WC in the first place. You also stated in your first post that he has progressively lost his hearing. Progressively losing your hearing at a worksite that uses heavy machinary COULD certainly point to a WC issue. It also COULD not. That's what I was responding to. I was just trying to give you a different angle to look at things. I wasn't trying to ruffle your feathers. Have you ever done decibal level testing at your worksite?

Don D

Speaking of decibal levels, Mace, quit screAMING IN YOUR POSTS.x:-)

SMace

Don, would you say that again, I CAN"T HEAR YOU!

Crout

Mace, you must work for Leslie's company.

Leslie

Please...it's not comp. My WC carrier tells me today (not officially of course - y'know they can't give legal advice) to term before he gets hurt and it becomes WC. Legal told me the same, then backed off and told me to hang on until they got a second opinion (they're not really employement law type of guys - they are more into government issues). I'd like to steer the employee to retire rather than be termed - severance and all that. I just don't want it to become about his age when it's not - it's about his hearing, or lack thereof.

Crout

[font size="1" color="#FF0000"]LAST EDITED ON 03-06-03 AT 12:13PM (CST)[/font][p]Just for fun, I thought I would toss this in. Please don't get upset. Wouldn't he have an ADA claim and wouldn't you be obligated to at least explore the option of modifying his work environment as Parabeagle suggested?

Don D

To add additional grief to your plate, let me suggest that we should never follow, or at least view as suspect, the advice of the comp people to terminate. These are, after all, insurance people with their own agendas. Those agendas don't typically match ours. The comp guy who tells you that today will be gone tomorrow when you call him again. Stay away from his advice. (please?)

Whirlwind

My agency shares an attorney with an agency that employs many deaf people, so I had the opportunity to run this by her today. Here's what she said (remember, don't shoot the messenger):

He is certainly covered by the ADA and is entitled to a reasonable accommodation if he needs one. Here is the analysis you need to do: What are the essential job functions of the job that you believe might be undermined by his lack of hearing? Is it that he can't hear someone or something warning him that he is endangering himself or others? How much could anyone rely on hearing around heavy machinery in a gravel pit? Are there do-able accommodations for those times when hearing is needed? (See Balloonman's post about visual substitutes for auditory signals.) Is a truck driver supposed to rely only on a backup signal (my operations mgr. says a truck or machinery operator is supposed to have a spotter for anything they can't see in their mirrors). In general, it was our attorney's opinion that a deaf person could probably be accommodated in this type of job. To terminate him without pursuing this angle could invite an ADA claim, or - as you have already surmised - suggest age discrimination.