EEOC Issues New Guidelines on Visual Disabilities
The EEOC has issued updated guidance regarding legal protections for workers with visually related disabilities, offering a number of specific examples and responses it views as appropriate. The guidance outlines what constitutes a visually related disability; the types of reasonable accommodations an applicant or employee may need; when an employer may ask questions about vision impairment; how to handle safety concerns about applicants with disabilities; and how an employer can ensure that no employee is harassed due to a visual disability.
“Visual disabilities,” according to the guidance, include any disability related to an individual’s vision, while “visual impairments” are conditions including blindness, low vision, limited visual fields, photosensitivity, color vision deficiencies or night blindness.
The guidance highlights that, under the ADA, visually impaired employees must not be denied employment opportunities for which they are qualified based on stereotypes or misassumptions that their disability may create safety hazards, increase employment costs, or that the applicant may have difficulty performing certain job duties. If a concern arises, employers should make individualized assessments, to determine whether an individual’s vision impairment could actually pose a direct threat to an employer’s operations.
Generally, employers should not ask applicants questions pertaining to visual impairment or treatment before making a conditional offer. Prohibited questions include asking about medical procedures related to vision, use of prescription medications related to eye conditions or conditions that affect vision (i.e., diabetes). Applicants who possess obvious visual impairments should not be questioned about their impairment, including the nature and severity of the impairment, if the impairment will progress or regress, and how the applicant manages the impairment. Employers may ask applicants with obvious impairments if an accommodation would be needed, and the type of accommodation needed to perform in the sought-after role.
Post-offer, but before employment commences, an employer may seek to determine what limitations the applicant has and what reasonable accommodations the employer may be able to offer the new employee so that he or she could safely perform the role. An offer cannot be revoked if the applicant is able to perform the essential functions with or without a reasonable accommodation, unless the visually impaired employee’s performance would create a direct safety risk, based on an individualized assessment.
The guidance emphasizes that if a visual impairment requires accommodation, an employer should engage in an interactive dialogue to identify a reasonable solution. The following are examples of accommodations that may be reasonable for a visually impaired employee:
- Assistive technology (text-to-speech software);
- Accessible materials (braille/proximity detectors/magnifying devices);
- Modification of workplace policies (use of guide dogs);
- Flexible scheduling; or
- Ambient adjustments; sighted assistance/services (qualified reader).
This latest guidance from the EEOC should be viewed by employers as an indication that vision disability issues may now be high on the EEOC’s enforcement priority and an opportunity to proactively assess their policies and processes to ensure that visually disabled applicants and employees do not experience discrimination in the workplace. Hiring procedures should be reviewed to ensure that inappropriate questions are not asked, and applicants are made aware of how to request accommodations in the application, interview, and on-boarding processes. Employee handbooks should be reviewed to make sure they are clear as to what a disability is and how accommodations should be requested.
Nemeth Bonnette Brouwer PC will continue to monitor changes to the ADA and EEOC guidance updates. Feel free to contact any of the attorneys at the firm with your questions.