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EEOC’s Updated Guidance on Visual Disabilities Provides Both New Information and Reminders for Employers
Aug 1, 2023

EEOC’s Updated Guidance on Visual Disabilities Provides Both New Information and Reminders for Employers

Topics: Discrimination, Harassment & Retaliation, Employee Hiring, Discipline & Termination, New Laws & Legislation, Personnel Policies and Procedures

On July 26, 2023, the EEOC issued updated guidance about the Americans with Disabilities Act (ADA) and employees and applicants with visual disabilities.

The new guidance reiterates that applicants and employees with vision impairments should not be denied employment opportunities based on stereotypes or incorrect assumptions that they may cause safety hazards, increase costs, or have difficulty performing certain job functions. The guidance includes information about how new technologies may be used as reasonable accommodations and a reminder that employment decisions made using AI and algorithms should not negatively impact individuals with visual disabilities.

The key main takeaways from the new guidance are:

  • Applicants:  Employers generally should not ask a job applicant questions about a visual impairment or treatment related to such impairment before making a conditional job offer.  
    • For example, employers should not ask applicants whether they have had medical procedures related to their vision, whether they use any prescription medications related to eye conditions, or whether they have a condition that affects vision (such as diabetes).
    • Employers may ask questions about the applicant’s ability to perform the job, such as whether the applicant is able to read labels or instructions, work the night shift, or inspect small components for quality control, if those are part of the job.
    • The applicant is not required to disclose a disability before accepting a job offer unless they are seeking a reasonable accommodation for the application process. An employer must provide an applicant an accommodation during the application process even if it believes that it will not be able to provide the applicant with a reasonable accommodation to perform the job for which the applicant is applying.
    • Employers should not ask applicants with obvious visual impairments questions about the impairment, such as the impairment’s nature/severity, whether it will progress, or how the applicant manages the impairment.
    • Employers may ask applicants with obvious visual impairments, or applicants who disclosed visual impairments, whether the applicant will need an accommodation, and if so, what type, if the employer reasonably believes that an accommodation will be needed to perform the job.  
    • Post-offer but before employment begins, the employer may ask questions designed to determine what limitations the offeree has and to determine what accommodations the offeree may need to perform the job. Note: In California, the offeree should not be asked to provide his or her medical diagnosis.
    • An employer cannot withdraw a job offer if the offeree is able to perform the essential functions of the job with or without a reasonable accommodation, but if the employer is concerned that the offeree is a safety risk, the employer should conduct an individualized assessment to evaluate whether the offeree poses a direct threat to the health or safety of the offeree or others in the workplace that cannot be eliminated or reduced with a reasonable accommodation.
  • Employees:  Employers may ask employees disability-related questions when:
    • The employer has a reasonable belief, based on objective evidence, that the employee’s ability to perform his/her essential job functions is impaired; 
    • The employer has a reasonable belief, based on objective evidence, that the employee may pose a direct threat to him/herself or others in the workplace;
    • To support an employee’s request for a reasonable accommodation related to the vision impairment;
    • To comply with federal safety statutes or regulations; and/or
    • To enable the employee to participate in a voluntary wellness program.
    • The employer may also ask for information related to the use of sick leave (such as requesting a doctor’s note) if it is the same as required of other employees.
  • Accommodations/Engaging in the Interactive Process:  Employers should always engage in the interactive process and not assume that an accommodation cannot be provided to permit the offeree or employee to perform the essential job functions. The new guidance emphasizes that employers should consider a wide range of potential accommodations during the interactive process, including both new and old technology such as:
    • Assistive technology, such as screen readers (text-to-speech software).
    • Accessible materials such as large print, braille, a recorded format, or an accessible shared document format.
    • Allowing the use of guide animals in the workplace.
    • Providing alternative forms of testing or training.
    • Adjusting lighting in work areas.
    • Providing sighted assistance (such as a qualified reader).
    • Optical character recognition (OCR) technology that creates documents in screen-readable electronic form from printed ones, including optical scanners (which can be wearable devices).
    • Proximity detectors that provide audible or physical feedback that the employee is too close to an object or another person.
    • Website modifications for applicants and employees to permit them to apply online and complete online tests or screening tools.
    • Low-vision optical devices such as magnifying devices.
    • Digital applications or recorders, including ones with transcription capability.
    • Smartphone or tablet applications with accessibility features.
    • Computer screen magnification, anti-glare, light filters, or similar devices.
    • Safety technology such as prescription versions of safety goggles.
    • Many additional potential accommodations are listed to provide guidance to employers about potential accommodations to discuss during the interactive process.
  • Artificial Intelligence (AI):  The new guidance briefly addresses AI.
    • Employers should make reasonable accommodations in the use of software that uses algorithms or AI as decision-making tools to ensure that they do not “screen out” applicants or employees with visual disabilities, such as providing an alternative testing format if AI does not provide an accurate assessment of the applicant or employee.
    • The guidance suggests that employers should take steps to provide information about how its technology evaluates applicants and employees and provide instructions for how to seek a reasonable accommodation if that technology may not accurately assess the qualifications of disabled persons. (For example, modifying software that evaluates employee keystrokes per minute to determine productivity for employees who use voice recognition software.)
  • Other Issues:  Employers should also evaluate whether accommodations are needed in areas beyond the employee’s specific job, such as modifying employee break rooms, gyms, cafeterias, or employee assistance programs, modifying forms for insurance/workers’ compensation, and/or providing access to other information in the workplace such as training, social events, or job postings. Employers should also ensure that managers, supervisors, co-workers, and others in the workplace do not harass individuals with visual impairments on the basis of their disability and take immediate action to investigate and remediate any claims of harassment.

Key Takeaways:  Employers should proactively assess their technology and application processes to ensure that visually disabled applicants have access and the tools needed to effectively apply for employment. Employers with visually disabled applicants or employees should be familiar with the new guidance, should thoroughly understand when they may be required to engage in the interactive process because of a visual disability, and should be open-minded and proactive when discussing and considering potential accommodations. For further guidance, employers should contact their favorite CDF attorney.

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Sacramento Office Managing Partner and Chair of CDF’s Traditional Labor Law Practice Group. Mark has been practicing labor and employment law in California for thirty years. His practice has a special emphasis on the representation of California employers in union-management relations and handling federal and state court litigation and administrative matters triggered by all types of employment-related disputes. He is also adept at providing creative and practical legal advice to help minimize the risks inherent in employing workers in California. He recently named “Sacramento Lawyer of the Year” in Employment Law-Management for 2021 by Best Lawyers®.
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