EEOC Updates Its Guidance on Visual Disabilities in the Workplace

 In
0

The Equal Employment Opportunity Commission has issued an updated version of its Visual Disabilities in the Workplace and the Americans with Disabilities Act technical assistance document. This document provides guidance to employers on when they may ask employees and applicants questions about a vision impairment, possible accommodations, safety concerns, and harassment prevention.

The resource begins with general information about the wide range of vision impairments that may cause blindness or low vision. It also emphasizes that many individuals with vision impairments can perform their essential job functions, with or without reasonable accommodation, and that employers should not rely on stereotypes or incorrect assumptions to deny them employment opportunities. Of particular interest, the resource makes the following points:

  • Wearing ordinary glasses or contact lenses does not constitute a disability under the ADA.
  • Vision tests are medical examinations, and employees can be required to take such a test or meet an uncorrected vision standard only when it is job-related and consistent with business necessity.

Applicants – Medical Inquiries

  • Employers may not ask about vision impairments (including history, medications, or current conditions) prior to making a job offer. They can ask whether the applicant can perform the essential functions of a job (which could include reading, working in low light, or inspecting small components, for example), with or without reasonable accommodation.
  • Applicants need not disclose visual disabilities unless they are seeking reasonable accommodation for some part of the application process (e.g. application materials in larger font or in braille).
  • If an applicant has an obvious impairment or voluntarily discloses a visual impairment, and the employer reasonably believes they would need an accommodation to perform the job, the employer may ask whether one is required and what type. Employers must provide an accommodation during the application process, even if it believes that it will be unable to provide an on-the-job reasonable accommodation.
  • After making an offer, an employer may ask questions about the applicant’s health, including visual disabilities, as long as it is asking the same questions of all those entering the same type of job. The employer may also request additional medical information to follow up on particular responses, as appropriate – but they can only disqualify those individuals from employment if it is job-related and consistent with business necessity.

Employees – Medical Inquiries

  • For employees, employers may ask questions about a visual disability only when they have a reasonable belief that the employee’s ability to perform the essential job functions is impaired or that they will pose a direct threat in the workplace. This can arise where employers observe performance issues that reasonably may be related to a known vision impairment, or where the employer observes symptoms that could indicate a vision impairment (difficulty visually focusing, reliable reports from others). Employers should keep in mind, however, that poor performance may be unrelated to a disability, and should not make assumptions.
  • Employers may also ask employees about vision impairments: to support a related request for reasonable accommodation, to enable employees to participate in voluntary wellness programs, to comply with federal safety statutes or regulations, and to verify the use of sick leave related to a vision impairment as long as all employees are required to provide such information.
  • Information must be kept confidential. Employers may not tell co-workers that an employee is receiving an ADA reasonable accommodation, or even that the ADA applies. (Instead, they should say that the information is personal, and company policy is to respect employee privacy, just as the co-worker’s privacy would be respected). The EEOC suggests that employers could avoid these issues by educating employees on reasonable accommodation, including through written procedures, handbooks, staff meetings, and training.

Reasonable Accommodations

  • Possible accommodations related to the performance of essential functions of the job include (but are not limited to):
    • Assistive technology (such as text-to-speech software, optical character recognition technology, systems with audible/tactile/vibrating feedback, or website modifications, low-vision optical devices, digital apps or recorders, smartphone and tablet apps with built-in accessibility features, magnifiers or closed-circuit televisions systems, larger and high-contrast monitors, adjustable computer operating system settings, prescription safety goggles, anti-glare shields and filters, large-print or high contrast keyboards, wayfinding tools and tracking devices, talking products like calculators, color identification technology, accessible maps)
    • Accessible materials (such as braille, large print, or recordings)
    • Modification of workplace/employer policies or procedures (such as verbal introduction protocols, use of personal assistive items, dress code modifications like sunglasses and filters, allowing the use of guide dogs in the work area, work schedule modification to facilitate transportation, telework, leave, alteration of marginal functions, reassignment to a vacant position), testing (such as allowing alternative testing, accessible format, additional time), or training
    • Ambient adjustments (such as brighter office lights, audible or tactile signs and warnings); sighted assistance or services (such as a qualified reader)
    • Sighted assistance or services (such as screen-sharing technology, qualified readers, sighted guides and assistance, input from orientation/mobility/assistive technology professionals, noise-canceling headsets, braille labeler and labels)

The EEOC also suggests the Job Accommodation Network for additional resources and ideas.

  • Employers must also provide reasonable accommodations related to the terms, conditions and privileges of employment, including: accommodations for access to work or the workplace itself, services, facilities, or portions of facilities to which all employees are granted access (for example, employee break rooms, gyms, and cafeterias, and employee assistance programs); access to information communicated in the workplace; and the opportunity to participate in employer-sponsored training and social events.
  • In keeping with the federal agencies’ recent focus on artificial intelligence in the workplace, the EEOC specifically notes that employers must provide accommodations in connection with the use of software that uses algorithms or AI as decision-making tools. Employers should take steps to ensure that these tools do not screen out or disadvantage those with disabilities.
  • No “magic words” are required to request an accommodation. The employee simply needs to make it known that they need an adjustment or change at work because of an impairment.
  • Employers must engage in the interactive process in response to an accommodation request. This can involve medical documentation under certain circumstances to establish the existence of a disability and why reasonable accommodation is needed.
  • Employers do not have to provide accommodations that are an undue hardship (meaning significant difficulty or expense). They do not have to provide personal use items that will be used both on and off the job. They do not have to eliminate essential functions, lower performance standards, or excuse conduct violations. If more than one reasonable accommodation would be effective, the employer may choose the accommodation, even if it is not the one preferred by the employee.

Safety and Legal Concerns

  • If the employee’s ability to perform the job safely is a concern, the employer must conduct an individualized assessment to determine whether the individual poses a direct threat in the workplace (meaning a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced through reasonable accommodation). This principle also applies in the post-offer, pre-employment situation. As part of this assessment, employers may send employees for a medical examination.
  • Employers need not hire/retain an individual with a visual disability where prohibited by federal law.

Harassment and Retaliation

  • Employers should make clear that they will not tolerate harassment based on disability or any other protected basis. They can do this through a written policy, staff meetings and training. They must also respond promptly and effectively to any reports of harassment.
  • The EEOC also emphasizes that the ADA prohibits retaliation against someone for requesting a reasonable accommodation and prohibits employers from interfering with the exercise of rights under the ADA.