New EEOC Resource Answers Employer Questions About ADA and Visual Disabilities in the Workplace

The U.S. Equal Employment Opportunity Commission (EEOC) released an updated technical assistance document detailing how the Americans with Disabilities Act (ADA) covers job applicants and employees with visual disabilities.

The technical assistance explains when an employer may permissibly ask about an applicant or employee’s vision and when such inquiries would violate the ADA. The guidance includes examples of questions an employer cannot ask an applicant, such as:

• • Whether the applicant has ever had any medical procedures related to their vision (for example, whether the applicant ever had eye surgery)
  • Whether the applicant uses any prescription medications, including medications for conditions related to the eye
  • Whether the applicant has a condition that affects the applicant’s vision or that may have caused a vision impairment (for example, whether the applicant has diabetes)

An employer may ask questions pertaining to the applicant’s ability to perform job functions, with or without reasonable accommodation, such as:

• • Whether the applicant can read labels on packages that need to be stocked
  • Whether the applicant can work the night shift
  • Whether the applicant can inspect small electronic components to determine if they have been damaged

The guidance also provides examples of when an employer can make vision-related inquiries when there is a reasonable belief, based on objective evidence, that the employee’s ability to perform essential job functions is impaired by a visual disability:

Example: Abdul, a data entry clerk, has recently started making numerous errors when entering information into the employer’s database. For example, he seems to be confusing the numbers 1, 7 and 9. Abdul’s supervisor also has recently begun to see Abdul rubbing his eyes frequently and looking more closely at both his computer screen and printed materials. Based on these observations, the employer has a reasonable belief based on objective evidence that Abdul’s performance problems are related to an eye condition and, therefore, may ask for medical information.

The guidance also discusses the reasonable accommodations that are available for employees with vision issues, including new technologies, many of which are free or low-cost. These include:

• • Screen readers (or text-to-speech software). Software applications can convert written text on a computer screen into spoken words or a braille display. These tools allow individuals to quickly review written text.
  • Optical character recognition (OCR) technology that can create documents in screen-readable electronic form from printed ones, including an optical scanner (desktop, handheld or wearable), and OCR software.
  • Systems with audible, tactile or vibrating feedback, such as proximity detectors, which can alert individuals if they are too close to an object or another person.
  • Website modifications for accessibility and taking steps to ensure that job applicants and employees can access and timely complete job applications, online tests or other screening tools.
  • Written materials in more accessible or alternate formats, such as in large print, sans serif fonts, braille, a recorded format, or an accessible shared document format, including those provided via QR code.

In line with other recent guidance from the EEOC and the U.S. Department of Justice warning of the improper use of artificial intelligence (AI) and algorithms in making employment decisions, the guidance describes how the use of AI can impact individuals with visual disabilities.

The document also addresses 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.

Please contact Mark Fijman or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.