THE EEOC ISSUES GUIDANCE ON THE ADA AND VISUAL DISABILITIES

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Patricia Tsipras

July 27, 2023

Yesterday – the 33rd anniversary of the Americans with Disabilities Act (ADA) – the U.S. Equal Employment Opportunity Commission (EEOC) released an updated technical assistance document, Visual Disabilities in the Workplace and the Americans with Disabilities Act, explaining how the ADA applies to job applicants and employees with visual disabilities.

The technical assistance document does not have the force or effect of law.  By publishing it, the EEOC simply hopes to provide clarity regarding existing legal requirements.

A Short Primer on the ADA
Title I of the ADA contains the provisions related to employment.  It covers private employers with 15 or more employees, as well as state and local government employers.

Under the ADA, individuals with disabilities include those who (1) have “a physical or mental impairment that substantially limits one or more major life activities”; (2) have a record (or history) of such an impairment; or (3) are subject to an adverse action “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity” (that is, those who are “regarded as” disabled).

What the Technical Assistance Document Covers
The technical assistance document:

• addresses when an employer may ask an applicant or employee questions about their vision. In general, at the pre-offer stage, do not ask questions about any medical condition.  At the post-offer stage, you may ask questions about the applicant’s health as long as you ask the same questions of all applicants for the same type of job.  During employment, your ability to ask questions is strictly limited.
• discusses the types of reasonable accommodations that may be needed in the workplace for individuals with visual disabilities, including highlighting new technologies – many of which are free or low-cost – like text-to-speech software, magnifying devices, or proximity detectors
• addresses how the use of artificial intelligence (AI) and algorithms to make employment decisions may impact individuals with visual disabilities and what employers can do to help prevent such individuals from being unfairly “screened out.” Specifically, the EEOC recommends that employers take steps to provide information about how their technology evaluates applicants or employees, and provide instructions for how to seek a reasonable accommodation.
• emphasizes the confidentiality of any medical information received about an applicant’s or employee’s visual disability

• addresses how employers should handle safety concerns about applicants and employees with visual disabilities. Do not act based on stereotypes of visual disabilities.  If you have a reasonable belief based on objective evidence that the visual disability may pose a safety concern, follow the ADA’s “direct threat” analysis, which involves assessing the risk and whether a reasonable accommodation can reduce or eliminate that risk.  Consider the “conflict with other federal laws” defense if a vision-related job requirement is necessary to comply with a federal safety law or regulation.
• addresses how employers can guard against harassment of employees who have a visual disability. Make it clear that you will not tolerate harassment, encourage prompt reporting of alleged harassment, and conduct immediate and thorough investigations of alleged harassment and take swift and appropriate corrective action.
• reminds employers that it is unlawful to retaliate against someone for requesting a reasonable accommodation or to interfere with the exercise of someone’s ADA rights

Employer Takeaways
It is the responsibility of ADA-covered employers to provide reasonable accommodations.  The EEOC’s technical assistance document provides guidance to do so.  We can help, too.

This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice.  Always consult an attorney with specific legal issues.