EEOC Offers New Guidance on Disability Accommodations in the Workplace

In late July 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released a new technical assistance document called “Visual Disabilities in the Workplace and the Americans with Disabilities Act.”¹ The EEOC is a federal agency tasked with enforcing and providing guidance on the provisions of the Americans with Disabilities Act (ADA).

The ADA provides that individuals with disabilities include those who have “a physical or mental impairment that substantially limits one or more major life activities . . .,” have a record or history of such a disability, or 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.”²

The new document is part of a series addressing particular disabilities in the workplace; this one is focused specifically on vision impairments and includes:

• when an employer may ask an applicant or employee questions about a vision impairment and how an employer should treat voluntary disclosures;
• what types of reasonable accommodations applicants or employees with visual disabilities may need;
• how an employer should handle safety concerns about applicants and employees with visual disabilities; and
• how an employer can ensure that no employee is harassed because of a visual disability.

What guidance does the document provide?

The EEOC directs employers not to ask about vision impairments prior to making a job offer. It is important that employers keep medical information offered by applicants or employees confidential. Employers have different rules to follow for inquiries and exams for accommodations depending on the employment stage (pre-offer, post-offer, and during employment), so employers should adhere to the new standards for the applicable stage. For example, an employer may not ask job applicants if they had or have a vision impairment; however, employers may ask questions pertaining to the applicant’s ability to perform job functions, with or without reasonable accommodations. This question may or may not elicit information about the disability, as many applicants would prefer not to address that at this stage.

The ADA requires employers to provide reasonable accommodations in three aspects of employment:

1. “Ensuring equal opportunity in the application process;
2. Enabling a qualified individual with a disability to perform the essential functions of their job; and
3. Making it possible for an employee with a disability to enjoy equal terms, conditions, benefits, and privileges of employment.”³

Some possible accommodations for those with visual disabilities include (but not exhaustively): assistive technology, accessible materials, modification of workplace/employer policies or procedures, testing or training, ambient adjustments, sighted assistance or services, or other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities.

Not every request for a reasonable accommodation may be granted if doing so would create an undue hardship on the company. An undue hardship means that providing the accommodation would result in significant difficulty or expense.

As far as safety concerns go, employers should follow the ADA’s “direct threat” analysis, which involves assessing potential risk and discerning the possibility that a reasonable accommodation might reduce or eliminate the risk. A direct threat is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced through reasonable accommodation.⁴

Employers should evaluate whether there is a significant risk of substantial harm by considering:

1. “The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm.”⁵

Lastly, the ADA prohibits harassment based on disability. Employers can take action to prevent and correct harassment because of a visual disability; this can be accomplished through written policies, solid handbooks, meetings, and training. The EEOC encourages emphasizing that the company takes harassment seriously, supporting reporting, investigating complaints, and taking proper action when harassment occurs.

How and When to Respond to Disability Accommodations in the Workplace

Businesses have certain obligations in responding to disability accommodations in the workplace. The response typically occurs when an employee or job applicant discloses a disability and requests accommodations to perform job duties effectively. Here's a general overview of the process:

Disclosure and Request: Employees with disabilities voluntarily disclose their condition to their employer and request reasonable accommodations to fulfill their job responsibilities. This disclosure is usually initiated by employees, but employers can also create an open and welcoming environment that encourages such communication.

Interactive Process: Once a request is made, the employer engages in an interactive process with the employee. This involves discussing the employee's specific needs, limitations, and potential solutions that would allow them to perform job tasks without causing undue hardship to the business.

Evaluation and Decision: The employer evaluates the requested accommodation in the context of the employee's job responsibilities and the overall workplace. It assesses whether the accommodation is feasible, practical, and reasonable. Accommodations could include modifications to the work environment, changes in work schedules, access to assistive technology, or adjustments to job tasks.

Implementation: If the requested accommodation is deemed reasonable and feasible, the employer puts the necessary adjustments in place. This may involve coordination with various departments, facilities management, IT, or relevant parties to ensure smooth implementation.

Ongoing Support: Employers continue to provide support and ensure that the accommodation is effective. Regular communication with the employee helps address any issues that may arise and ensures that the accommodation remains appropriate as circumstances evolve.

Documentation: Throughout the process, it's important for employers to maintain accurate records of the accommodation request, discussions, decisions, and actions taken. This documentation helps demonstrate compliance with legal requirements and provides a historical record for future reference.

Training and Awareness: Employers can proactively create a culture of inclusivity by offering disability awareness training to employees and supervisors. This can help foster understanding, reduce stigma, and create a more supportive workplace environment.

Legal Compliance: Employers must adhere to relevant laws, such as the Americans with Disabilities Act (ADA) in the United States and any state or local laws, that mandate providing reasonable accommodations to qualified individuals with disabilities. Failure to comply with these laws could result in legal consequences.

Conclusion

The EEOC’s new guidance aids businesses in knowing how to respond to vision impairment accommodations under the ADA. However, the process for disability accommodations is the same for all disabilities.

Responding to all types of disability accommodations well not only recognizes the unique needs of each individual employee with disabilities and ensures equal access to opportunities, it also demonstrates what it looks like to treat others with their God-given dignity and leads to a more productive and harmonious work environment for everyone.

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¹ Visual Disabilities in the Workplace and the Americans with Disabilities Act | U.S. Equal Employment Opportunity Commission (eeoc.gov)

² 42 U.S.C. § 12102(1) and (3); 29 C.F.R. § 1630.2(g)

³ 42 U.S.C. § 12111(9); 42 U.S.C. § 12112(a), (b)(5); 29 C.F.R. § 1630.2(o)(1)

⁴ 29 C.F.R. § 1630.2(r)

⁵ Id.

Featured Image by Rebecca Sidebotham.