The EEOC recently released a new guidance document entitled Visual Disabilities in the Workplace and the Americans with Disabilities Act (“ADA”) (EEOC Guidance).
This guidance enhanced prior EEOC Guidance and specifically addressed:
• When an employer may ask an applicant or employee questions about a vision impairment and how an employer should treat voluntary disclosures;
• The types of reasonable accommodations that applicants or employees with visual disabilities may need;
• How safety concerns about applicants and employees with visual disabilities should be handled; and
• Preventing harassment based on a visual disability.
The EEOC Guidance clarifies that an employer must accommodate job applicants and employees with visual disabilities if a reasonable accommodation permits the individual to perform the essential job functions. A “visual disability” is any disability related to an individual’s vision. A “vision impairment” refers to various vision-related conditions, including blindness and low vision, limited visual fields, photosensitivity, color vision deficiencies or night blindness. The mere fact that an individual wears glasses does not, by itself, qualify the individual for disability protections under the ADA.
Proper & Improper Employment Screening
An employer cannot require an individual to take a vision test with uncorrected vision or meet a vision standard with uncorrected vision unless that test or standard, as used by the employer, is shown to be job-related and consistent with business necessity.
Prior to extending an offer of employment, an employer may not ask questions about an applicant’s medical condition or require an applicant to have a medical examination before making a conditional job offer. Prohibited questions include:
• Whether the applicant has ever had any medical procedures related to vision (for example, whether the applicant ever had eye surgery);
• Whether the applicant uses any prescription medications, including medications for conditions related to the eye; or
• Whether the applicant has a condition that affects the applicant’s vision or that may have caused a vision impairment (for example, whether the applicant has diabetes).
An employer may ask questions pertaining to the applicant’s ability to perform job functions, with or without reasonable accommodation, such as:
• Whether the applicant can read labels on packages that need to be stocked;
• Whether the applicant can work the night shift; or
• Whether the applicant can inspect small electronic components to determine if they have been damaged.
The ADA does not require applicants to disclose a vision impairment or visual disability unless this applicant is seeking a reasonable accommodation with respect to the application process.
The Guidance also states that an employer may not ask an applicant to discuss obvious impairments, including vision impairments. If an applicant voluntarily discloses a vision impairment, the employer may not ask any questions about its nature or severity, when it began, whether and how it will progress, or how the individual manages the impairment.
However, if an applicant has an obvious impairment or voluntarily discloses a vision impairment, and the employer reasonably believes the applicant will require an accommodation to perform the job, the employer may ask whether the applicant will need an accommodation and, if so, what type. An employer must keep any information disclosed confidential.
Permitted Inquiries to Current Employees
An employer is also permitted to ask an employee about a vision impairment to the extent the information is necessary to:
• Support the employee’s request for a reasonable accommodation related to a vision impairment;
• Enable the employee to participate in a voluntary wellness program;
• Comply with federal safety statutes or regulations; or
• Verify the employee’s use of sick leave related to a vision impairment, if the employer requires all employees to provide verifying information to justify the use of sick leave.
Granting Reasonable Accommodation Requests
An employer must provide a reasonable accommodation to an employee with a visual disability if doing so would permit the employee to perform the essential functions of the job.
The EEOC Guidance provides an extensive list of potential assistive or accessible technology or materials as well as other potential strategies for accommodating individuals with visual disabilities in the workplace. Reasonable accommodation for individuals with vision impairments include:
• Assistive technology (such as text-to-speech software or magnification screens);
• Website modification for accessibility, accessible materials (i.e., braille or large print);
• Modified workplace/employer policies or procedures (i.e., the use of guide dogs in the work area), testing or training modifications;
• Ambient adjustments (i.e., brighter office lights); and
• Sighted assistance or services (i.e., a qualified reader).
Pre-Screening Technology that Could Violate ADA Requirements
Additionally, employers should be aware of how algorithmic or AI decision-making tools might intentionally or unintentionally “screen out” individuals with disabilities in the application process and when employees are on the job, even though the individuals are able to do jobs with or without reasonable accommodation. Employers should be prepared to provide reasonable accommodations during the application process, such as an alternative testing format that may provide a more accurate assessment of the applicant’s or employee’s ability to perform the position absent undue hardship.
When it comes to safety concerns, an employer should be careful not to act based on myths, fears, or stereotypes about vision impairments. Instead, employers need to evaluate individuals based on their skills, knowledge, and experience, and, if any, their specific disability-related limitations.
If the employer has a reasonable belief based on objective evidence that an individual’s visual disability may pose safety issues, then it should follow the ADA’s “direct threat” analysis. In doing so, the employer should conduct an individualized assessment of an individual’s ability to safely perform the essential functions of the job and evaluate whether there is a significant risk of substantial harm. Analyzing a significant risk of substantial harm involves consideration of: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Thereafter, if the employer determines there is a significant risk of substantial harm, then the employer must determine whether any reasonable accommodation would reduce or eliminate the risk.
However, if an employer imposes a vision-related requirement that is necessary to comply with a federal safety law or regulation, the “conflict with other federal laws” defense will apply, and the employer’s safety-based qualification standard may be a permissible business necessity under the ADA.
Employers should take preventive actions to ensure compliance with the updated EEOC Guidance. Proactive measures might include:
• Reviewing and revising their workplace policies and procedures with respect to discrimination, harassment, retaliation, and reasonable accommodations;
• Reviewing their recruiting and hiring processes and any testing procedures to ensure that individuals with visual impairments do not experience discrimination in the application process or during employment;
• Training human resources personnel, managers, and supervisors on proper recruiting, screening, and hiring practices;
• Training human resources personnel, managers, and supervisors on how to recognize accommodation requests and the proper way to respond to them and escalate them; and
• Training human resources personnel on the appropriate way to address and evaluate requests for reasonable accommodations.
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This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission.