EEOC Issues Technical Assistance Document Explaining How the ADA Applies to Visual Impairments and Disabilities  |  By: Catherine A. Veeneman

The Equal Employment Opportunity Commission (“EEOC”) recently issued a technical assistance document explaining how the Americans with Disabilities Act (“ADA”) applies to job applicants and employees with visual disabilities or impairments.  The document addresses, among other topics, what questions an employer may ask a job applicant or employee about a visual disability and how employers should handle requests for reasonable accommodations from individuals with a visual disability or impairment.

The ADA defines visual disabilities as “any disabilities related to an individual’s vision.”  The term “vision impairments” covers a number of “vision-related conditions, including blindness and low vision, as well as limited visual fields, photosensitivity, color vision deficiencies, or night blindness.”  In addition to government employers, the ADA applies to all private employers with 15 or more employees.

Questions an Employer May Ask a Job Applicant or Employee Regarding a Visual Disability or Impairment

The EEOC details precisely what information an employer may gather from an individual relating to a visual impairment at three different stages of the employment process: the interview stage (or “pre-offer period”), the “post-offer period,” and the employment stage.  What questions an employer may ask under the ADA will depend on the stage of employment.  For example, during the pre-offer period, an employer cannot ask a job applicant whether the applicant has or had a vision impairment, or ask any questions related to any treatment for the vision impairment.  An employer also cannot require an applicant to have a medical exam at this stage.  That being said, an employer can ask a job applicant questions relating to the applicant’s ability to perform job functions, with or without reasonable accommodations.

To provide further clarity, the EEOC lists examples of questions that an employer can and cannot ask prior to making a job offer.  The following are examples provided by the EEOC of questions an employer may not ask in this phase:

• “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; or
• 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).”

In contrast, the following are examples provided by the EEOC of questions an employer may ask in the pre-offer period:

• “whether the applicant can read labels on packages that need to be stocked;
• whether the applicant can work the night shift; or
• whether the applicant can inspect small electronic components to determine if they have been damaged.”

The EEOC emphasizes that, even if a visual impairment is obvious or the job applicant voluntarily discloses the impairment during the interview process, an employer cannot ask the job applicant to discuss the obvious visual impairment or ask follow-up questions regarding the nature or severity of a voluntarily disclosed impairment.  In either situation, an employer would only be able to ask if the applicant would need a reasonable accommodation and, if so, the type of reasonable accommodation.

Once an offer is made and the parties enter the “post-offer period,” an employer may ask health-related questions and may require a medical exam, to the extent that such questions and requests are part of the employer’s standard protocol, meaning that all applicants are asked the same questions and are required to submit to the same examinations.  If a vision disability is disclosed during this process, an employer would then be permitted to ask follow-up questions regarding disclosed visual impairments, such as:

• “how long the applicant has had the vision impairment;
• what, if any, vision the applicant has;
• what specific visual limitations the applicant experiences; and
• what, if any, reasonable accommodations the applicant may need to perform the job.”

The EEOC emphasizes, though, that, under the ADA, an employer may not withdraw a job offer on the grounds of an applicant’s visual impairment if that individual is able to perform the essential functions of the job, with or without reasonable accommodation. 

Even after an applicant accepts a job offer and becomes an employee, an employer still does not have carte blanche to ask whatever they would like regarding the employee’s visual impairment.  Instead, an employer is permitted to ask an employee about a visual impairment only in the context of accomplishing one or more of the following:

• “to support the employee’s request for a reasonable accommodation needed because of a vision impairment;
• to enable the employee to participate in a voluntary wellness program;^[39]
• to comply with federal safety statutes or regulations. “Concerns About Safety” (Question 20) discusses federal safety requirements;^[40]or   
• to verify the employee’s use of sick leave related to a vision impairment, if the employer requires all employees to provide such information (for instance, doctors’ notes) to justify their use of sick leave. However, the employer may not require more burdensome verification for individuals with disabilities than it requires of others.”

The EEOC does clarify, though, that, in situations where an employee has taken a leave of absence with no exact or estimated return date or has requested additional leave, the employer would be entitled to ask for periodic updates from the employee on the employee’s condition.

Finally, the EEOC reminds employers that, regardless of what stage the information was gathered, any information obtained by the employer about a job applicant or employee’s visual impairment must be kept confidential.  During the employment phase, an employer would only be able to disclose information regarding an employee’s visual impairment under the following circumstances:

• “to supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee’s work restrictions;
• to first aid and safety personnel, if an employee may need emergency treatment or require some other assistance at work;
• to individuals investigating compliance with the ADA and similar state and local laws; and
• when needed for workers’ compensation or insurance purposes (for example, to process a claim).”

Guidance Regarding Providing Reasonable Accommodations for Visual Disabilities and Impairments

The EEOC also provides guidance to employers on how to handle requests for reasonable accommodations concerning visual impairments and disabilities from job applicants and employees.  The EEOC first reminds employers that the ADA requires employers to provide reasonable accommodations in the following 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.” 

With respect to visual accommodations, the EEOC lists the following as examples of reasonable accommodations that are applicable:

• “assistive technology (such as text-to-speech software);
• accessible materials (such as braille or large print);
• 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 adjustment (such as brighter office lights);
• sighted assistance or services (such as a qualified reader); or other modifications or adjustments that allow a qualified applicant or employee with an ADA disability to enjoy equal employment opportunities.”

The EEOC goes on to remind employers that there are no “magic words” that an employee must use to request a reasonable accommodation.  All an employee (or job applicant) needs to do is let the employer know they need an adjustment at work because of an impairment.  It will then be up to the employer to engage in the interactive process to get the additional information it needs to determine what reasonable accommodations can and should be offered.

That being said, it still remains the case that an employer will not need to provide an accommodation if doing so would create an undue hardship, meaning the accommodation would result in significant difficulty or expense for the employer.  Regarding visual impairments or disabilities, an employer is under no obligation to provide employees “with personal use items, such as eyeglasses, or other devices that are used both on and off the job.”  The EEOC also notes that the ADA does not require an employer to eliminate an essential job function or tolerate violations of conduct rules.

The document also provides guidance for employers regarding other situations which may come up, including using artificial intelligence in the application review process, safety concerns in the workplace relating to visual disabilities, and preventing harassment of individuals based on disabilities.

Takeaways for Employers

While the EEOC’s technical assistance document provides a comprehensive guide for employers regarding how to properly handle visual impairments and disabilities under the ADA, there is nothing groundbreaking here.  At the end of the day, the EEOC’s guidance regarding handling visual impairments and disabilities is on par with how other disabilities must be handled under the ADA.  Nevertheless, the technical assistance serves as an easy-to-use reminder of how employers should approach disabilities in general, and visual impairments in particular, at each stage of employment.     

In terms of the application process, an employer would do well to ensure everyone who is involved in the interview process knows what they can and cannot ask an applicant, particularly in a situation where there is an obvious impairment or the impairment has been voluntarily disclosed by the applicant. 

Once an offer is made, an employer should make sure to ask the same questions and have the same requirements for all job applicants, regardless of whether it appears the applicant may have a visual impairment or disability.  If a visual disability is disclosed, the employer should make sure to let that applicant know that they can ask for a reasonable accommodation or even ask the applicant whether they believe one will be necessary.  If an employer believes they need to withdraw an offer of employment on the grounds that the applicant’s visual impairment or disability would prevent the applicant from being able to perform the essential functions of the job, with or without reasonable accommodation, an employer should confer with counsel before doing so.

Employers should always remain mindful and alert for any indication that an employee may need a reasonable accommodation due to a visual impairment or disability.  In the event an employer believes a reasonable accommodation might be required, the employer should immediately begin the interactive process with the employee to obtain the information it needs to address the need.  Employers should also be aware of any state or local rules that might serve to modify the EEOC’s guidelines.  For employers in California, different rules will apply.  The California Civil Rights Department website has a suggested form an employer can use to engage in the interactive process with the employee.  This form is tailored to the California Fair Employment and Housing Act, but can be an effective tool when handling reasonable accommodation requests in California in general.

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