When public safety and the protections of the Americans with Disabilities Act come into conflict, public safety prevails. But that doesn’t mean the ADA should be tossed aside. In fact, compliance with the ADA gives us a more effective police force.
In a case that came to federal court in March in New York, two police officers who had been forcibly retired because they wore hearing aids were reinstated with back pay. The ruling covered all current police officers, and presumably all recruits as well. A departmental review over the next six months will finalize the terms. The judge said she would be keeping a close eye on the developments until the review is complete.
Both officers had lost partial hearing during work-related incidents before 2010. Both had gone for help to the NYPD, which sent them for testing and eventually paid for their hearing aids. The two, a deputy inspector and a sergeant, went back to their jobs, with their hearing aids. Then, with no warning, both men were told they had to retire — both had more than 20 years on the force.
They fought the dismissals, becoming plaintiffs in James Phillips and Daniel Carione v. The City of New York and others. The city claimed the officers were not able to perform the essential functions of their job, bringing as evidence a litany of the failures of hearing aids. The evidence seemed persuasive until an amicus brief filed by AARP and others dismantled the NYPD’s case. The primary source for hearing-aid information, it turned out, was a 1996 U.S. Postal Service review. Hearing aids in 1996 and 2015 bear little resemblance to each other. In 1996 hearing aids were analog, unreliable and very unsophisticated. Today all new hearing aids are digital, with few of the problems of the older models.
The brief also noted that New York appeared to be the only police department in the country that “explicitly excludes all applicants who use hearing aids and maintains a blanket exclusion policy for officers who develop hearing loss.”
This doesn’t mean that we will have police officers who can’t hear properly. They must pass a hearing test — wearing their hearing aids — and each must be judged on a case-by-case basis, taking into consideration a particular job task.
The American College of Occupational and Environmental Medicine (ACOEM) offers guidance on the Medical Evaluation of Law Enforcement Officers. The report notes that audiometric testing may be done with hearing aids in place. It notes that officers must be able to recognize sounds like the opening of a folding knife, or sounds associated with a weapon. They must be able to do this and other hearing-dependent essential tasks in a noisy environment.
The report also recommends that police officers take precautions to protect their hearing, especially during firearms training. The ACOEM panel recommended that officers wear “double hearing protection (earplugs and earmuffs).” A Boston police officer who was forced to retire because she wore hearing aids and who is fighting the dismissal lost her hearing when practicing with a new firearm at a police firing range. She was not wearing hearing protection.
Public safety and the rights of officers under ADA both benefit from this court decision. After hearing aids were banned, police officers with hearing loss hid their disability. No one came forward and asked for hearing aids, for fear of losing their jobs. Their hearing loss remained undetected, because there were no follow-up hearing tests once someone was hired. These officers were far more dangerous to the public than officers who could pass the stringent police test with hearing aids.
The NYPD allows eyeglasses and prosthetic limbs, and now hearing aids. Other public safety officers currently face stricter restrictions. The Fire Department’s Guide to Implementing NFPA 1582, a publication of the International Association of Fire Chiefs, for instance, forbids the use of hearing aids or cochlear implants by new hires. (This was a new policy, added in 2013.) Current members of fire departments who develop hearing loss are evaluated on a task-performance basis. The firefighter guidelines also recommend a certain level of aerobic fitness. Candidates must score 12 METS or more on a stress test — the same level that the American Heart Association recommends to decrease the risk of hypertension.
Several police officers I talked to about this case for a New York Times op-ed essay suggested aerobic fitness might be a good screening tool for police officers as well, who sometimes sit for long hours in squad cars, coffee and doughnuts at hand.
The ACOEM guidelines for hearing include some comparative information. For instance, the State of New York explicitly permits hearing aid use for State Police officers, as do many city and state departments. But the U.S. Army rules out “current or history of hearing aid use.” The FBI and the Secret Service both prohibited hearing aid use, at the time the guidelines were written.
Presumably, good hearing without hearing aids is one of the essential functions of the job in these organizations. If someone comes forward to claim otherwise, the New York City decision may influence the outcome. In the NYPD at least, compliance with the ADA will result in enhanced public safety.
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