EEOC Releases Updated Guidance on Visual Disabilities in the Workplace

Sheppard Mullin Richter & Hampton LLP

Sheppard Mullin Richter & Hampton LLP

On July 26, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued updated guidance, Visual Disabilities in the Workplace and the Americans with Disabilities Act, addressing how the Americans with Disabilities Act (“ADA”) applies to job applicants and employees with visual disabilities. The guidance addresses various topics including: (1) when an employer may ask a job applicant or employee questions about his or her vision impairment and how an employer should treat voluntary disclosures; (2) what types of reasonable accommodations applicants or employees with visual disabilities may need; (3) safety concerns about applicants and employees with visual disabilities; and (4) ensuring no employee is harassed because of a visual disability.

Below are the main takeaways for employers from the new guidance:

  • General Information About Vision Impairments
    • Not everyone who wears ordinary glasses or contact lenses is an individual with a disability under the ADA. An individual who uses ordinary eyeglasses or contact lenses that are intended to fully correct their vision typically will not be covered under the ADA.
    • An employer can only require an employee to take a vision test with uncorrected vision, or meet a vision standard with uncorrected vision, if that test or standard is job-related and consistent with business necessity.
  • Information Requests to Applicants: Before an Offer of Employment Is Made
    • Employers may not ask a job applicant questions about vision impairments. For example, employers should not ask whether the applicant had a medical procedure related to their vision, whether they take medications relating to eye conditions, or whether they have a current condition that affects vision, prior to making a conditional job offer.
    • Employers are permitted to ask questions about whether the applicant can perform the essential functions of a job, including, for example, whether the applicant can read instructions or labels, work in low light, work the night shift, or inspect small components as part of a quality-control function.
    • Applicants do not need to disclose current or past visual disabilities unless they are seeking a reasonable accommodation for some part of the application process (for example, if the applicant needs application materials in a larger font or in braille).
    • In general, an employer may not ask an applicant to discuss their obvious visual impairments. An employer also may not ask an applicant who voluntarily discloses a visual impairment questions about its nature, severity, onset, etc. However, if an applicant has an obvious impairment or voluntarily discloses a visual impairment, and the employer reasonably believes the applicant would need an accommodation to perform the job, the employer may ask whether one is required and, if so, what type.
    • Employers must provide an applicant with a reasonable accommodation during the application process (for example, application materials in larger font or braille), even if the employer believes that it will not be able to provide the applicant with a reasonable accommodation to perform the job the applicant is applying for.
  • Information Requests to Applicants: After an Offer of Employment Is Made
    • After making an offer, an employer may ask questions about the applicant’s visual disabilities, including, for example: how long the applicant has had the vision impairment; what, if any, vision the applicant has; the applicant’s specific visual limitations; and what reasonable accommodations the applicant may need to perform the job.
    • An employer may require a medical examination, but only if all applicants of the same type of job are treated equally in this regard.
    • An employer may not withdraw an offer from an applicant due to their vision impairment during the “post-offer period,” if the individual is able to perform the essential functions of the job, with or without reasonable accommodation.
    • If the employer has concerns that the applicant’s vision impairment may create a safety risk in the workplace, the employer may conduct an individualized assessment to evaluate whether the individual’s impairment poses a direct threat. A direct threat is defined as a significant risk of substantial harm to the health or safety of the applicant or others that cannot be eliminated or reduced through reasonable accommodation. 
  • Information Requests to Current Employee
    • An employer may ask a current employee questions and/or require a medical examination regarding the employee’s vision impairment only if the employer has a reasonable belief, based on objective evidence, 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 the employee’s known vision impairment, or where the employer observes symptoms that could indicate a vision impairment (i.e., difficulty visually focusing, or reliable reports from family or coworkers). The EEOC warns, however, that poor performance may be unrelated to a disability, and should be handled in accordance with the employer’s performance-related policies.
    • An employer also may ask an employee about vision impairments: to support a related request for reasonable accommodation; to enable the employee to participate in voluntary wellness programs; to comply with federal safety statutes or regulations; and to verify the employee’s use of sick leave related to a vision impairment.
  • Confidentiality
    • An employer must keep confidential any medical information it learns about a job applicant or employee.
    • Only under the following circumstances may an employer disclose that an employee has a vision impairment: to supervisors and managers, if necessary to provide a reasonable accommodation; to first aid and safety personnel, if the employee needs emergency treatment or assistance at work; to individuals investigating compliance with the ADA and/or similar state and local laws; and when necessary for workers’ compensation or insurance claim purposes. 
    • Employers may not tell coworkers that an employee is receiving an ADA reasonable accommodation, or even that the ADA applies, because this amounts to a prohibited disclosure that the employee has a disability. Instead, the employer may say that the information is personal, and company policy is to respect employee privacy.
  • Accommodating Applicants and Employees With Vision Impairments
    • To assist employers with determining whether a reasonable accommodation can be provided, the EEOC has included some examples of reasonable accommodations that could be provided to applicants or employees depending on their visual impairment and/or job functions:
      • Assistive or accessible technology or materials, including but not limited to: screen readers (text-to-speech software); optical character recognition technology; systems with audible, tactile, or vibrating feedback; website modifications; written materials in more accessible formats, such as large print, braille, or recorded format; low-vision optical devices, which include magnifying 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; large-print or high contrast keyboards; wayfinding tools and tracking devices; anti-glare shields and filters; talking products like calculators; color identification technology; and accessible maps for navigation.
      • Modification of employer policies and procedures, which may include: workplace etiquette modification (i.e., verbal introduction and descriptions of speakers at meetings); use of personal assistive items; dress code modifications (i.e., sunglasses and filters); allowing the use of guide dogs in the workplace; work schedule modification; remote work; leave; alteration of marginal job functions; reassignment to a vacant position; and modifying employment tests and/or trainings.
      • Work area adjustment recommendations include: ambient light adjustments; and audible or tactile signs and warning surfaces.
      • Sighted assistance or services, including: virtual assistance via screen-sharing technology; qualified readers; sighted guides and assistance; worksite visits by assisted technology professionals; noise-canceling headsets; and braille labeler and labels.
    • Employers must also provide reasonable accommodations related to the terms, conditions and privileges of employment, including: accommodations for access to the workplace itself, services, facilities, or portions of facilities to which all employees are granted access (i.e., employee break rooms, gyms, and cafeterias); access to information communicated or posted in the workplace; and the opportunity to participate in employer-sponsored trainings, programs, and/or social events.
    • 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. In certain circumstances, this can involve medical documentation to establish the existence of a disability and why a reasonable accommodation is needed.
    • Employers do not have to provide accommodations if doing so would be an undue hardship. Undue hardship means providing the reasonable accommodation would be a significant difficulty or expense. Employers do not have to eliminate essential job 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 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 employee poses a direct threat in the workplace pursuant to the ADA’s “direct threat” analysis. 
    • 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 on any other protected basis. This can be done in a written policy, staff meetings, and periodic trainings. The employer should emphasize that harassment is prohibited and that employees should promptly report such conduct to a manager.
    • Employers should immediately conduct a thorough investigation of any report of harassment and take prompt corrective action.
    • The ADA prohibits retaliation by an employer against someone who requests a reasonable accommodation. It is also unlawful for an employer to interfere with the exercise of ADA rights.

In light of the EEOC’s new guidance, employers with visually impaired applicants or employees should become familiar with these guidelines and should make changes to any employment handbooks or policies as necessary. We will continue monitoring developments in this area and provide updates as new information becomes available.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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