Employers Should Not Turn A Blind Eye To Employees With Vision Disabilities
Picture this: a young adult gets a new job at an upscale fish market. The adult, let’s call him Sam, tells his supervisor that while he wears contacts, he has night blindness so that he cannot see in dimming light, and he wears contact lenses to manage his extremely severe nearsightedness.
The supervisor does not respond to this disclosure and proceeds to show Sam the ropes – working with customers, cutting fish, using the cash register.
One night, five days into Sam’s work at the market, as customers throng the counter, Sam struggles to handle the volume, and the encroaching evening makes it hard for him to see the prices on the fish.
The next day, Sam’s supervisor terminates Sam because his vision is not good enough to do his job well.
What Did The Employer Do Wrong?
Luckily for employers (but too late for Sam’s employer), this week the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces the anti-discrimination laws, including the Americans With Disabilities Act (ADA), issued a technical assistance document, Visual Disabilities In the Workplace and the Americans With Disabilities Act. The Guidance discusses:
- 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.
For our scenario, let’s focus on the second and third points.
First, when considering the types of reasonable accommodations that an employer may provide to an employee or applicant with a disability, employers must engage in the interactive process.
What Is The Interactive Process? What Do You Mean By Reasonable Accommodations?
Critical to compliance with the ADA, employers must sit down and communicate with an employee who has a visual disability to determine what kind of reasonable accommodations the employee needs and that the employer can provide.
A reasonable accommodation is a change in the way duties are performed to help a disabled employee perform their job duties or enjoy the benefits and privileges of employment. If a disabled employee requests a reasonable accommodation, an employer must provide it unless doing so would cause “undue hardship,” defined as significant difficulty or expense for the employer given its size, financial resources, and the needs of the business. An employer may not refuse to provide an accommodation just because it involves some cost, but in truth, most accommodations are free or less than $500.
Examples of Reasonable Accommodations
Helpfully, the EEOC lists several accommodations that an employer might provide to visually-impaired employee or applicant. These include:
- assistive technology or screen readers (e.g., text-to-speech software) so that visually impaired workers can 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;
- Written materials in more accessible formats, such as in large print, more readable fonts, braille, a recorded format;
- Modification of workplace/employer policies or procedures (such as allowing the use of guide dogs in the work area), testing (such as allowing alternative testing), or training;
- Ambient adjustments (such as brighter office lights);
- Sighted assistance or services (such as a qualified reader);
- Large print keyboards;
- Color identification technology.
What is “reasonable” or not depends on the workplace, the individual and their level of impairment, and the job duties the individual is expected to perform. It is an individualized process, and accommodations that may be reasonable in one instance may not be in another.
The guidance document reminds employers that employees do not need to use “magic words” to request an accommodation. An employee may simply ask for a workplace adjustment that could trigger the need to engage in the interactive process.
Employers may need to provide more than one accommodation at the same time, may need to try new accommodations when one is ineffective, and must continue to engage in the interactive process. The process is an ongoing duty, not a one and done.
If coworkers question why the disabled employee receives special treatment, the employer cannot explain that the employee is receiving reasonable accommodations because of a disability – that’s confidential under the ADA!
Well, What About Safety Issues? How Can I Give A Visually-Impaired Chef a Knife?!?
Significantly, the guidance emphasizes that employers should not rely on outdated myths and stereotypes about whether a visually impaired or blind employee can do the job — especially when it comes to safety.
The EEOC explains that an employer may exclude an individual with a vision impairment from a job for safety reasons only when the individual poses a direct threat.
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 providing a reasonable accommodation.
To determine if there is a direct threat, first, an employer should conduct an individualized assessment of an individual’s ability to safely perform the essential functions of the job, and, if there is, if a reasonable accommodation exists to reduce or eliminate the risk.
Employers, take a careful look at the new EEOC guidance, and, like with all disabilities:
- Determine whether or not an employee requires an accommodation. Actually talk to the employee, i.e., engage in an “interactive discussion.” Determine what your employee needs and what you, as the employer, can provide without undue hardship to your business.
- Then, consider whether you need to request any information from the employee’s medical provider so as to understand the employee’s difficulties, how accommodations could alleviate an employee’s limitations, and which accommodations may be appropriate.
- A wide range of reasonable accommodations for visual impairments exist. Check out the list on the new EEOC guidance, the JAN Network, or consult with an employment attorney.
- Critically, document the interactive process. Once you speak with the employee, summarize those conversations with an email so both of you are on the same page. This also provides employers with a defense to a failure to accommodate claim.
- Remember, there are no magic words that an employee must use to request an accommodation, and the ADA duty to engage in an interactive process is an ongoing one.
- Check your handbook policies for inflexibility. Modification of a workplace policy may be a reasonable accommodation for a disabled employee.
Wait, What About Sam?
As for Sam, he decided he did not really want that job at the fish market.
However, his mother, an employment lawyer, visited that employer to ensure it was aware of its obligations under the ADA and to dispel the harmful stereotypes that the employer absorbed about low vision individuals and their abilities to perform certain jobs.
While the employer failed to even try to accommodate Sam and his visual impairments, in the future, it knows how to engage in the interactive process.