[humanser] EEOC document regarding blindness/visual impairments and employment

[MARY CHAPPELL]

Mary,
Thank you for this. It will go directly into my Resource folder.
Genuinely,
Mary Tatum Chappell

-----Original Message-----
From: humanser [mailto:humanser-bounces at nfbnet.org] On Behalf Of Merry
Schoch
Sent: Sunday, October 13, 2013 5:27 PM
To: Human Services Mailing List
Subject: [humanser] EEOC document regarding blindness/visual impairments and
employment

This is long, but well worth the read


 

The U.S. Equal Employment Opportunity Commission 

  _____  


Questions and Answers About Blindness and Vision Impairments in the
Workplace and the Americans with Disabilities Act


hNotice Concerning The Americans With Disabilities Act Amendments Act Of
2008


Th           he Americans with Disabilities Act (ADA) Amendments Act of 2008
was signed into law on September 25, 2008 and becomes effective January 1,
2009. Because this law makes several significant changes, including changes
to the definition of the term "disability," the EEOC will be evaluating the
impact of these changes on this document and other publications. See the
list of specific changes to the ADA made by the ADA Amendments Act.


INTRODUCTION


The Americans with Disabilities Act (ADA) is a federal law that prohibits
discrimination on the basis of disability. Title I of the ADA makes it
unlawful for any employer to discriminate against a qualified applicant or
employee because of a disability in any aspect of employment. The ADA covers
employers with 15 or more employees, including state and local governments.
Section 501 of the Rehabilitation Act provides the same protections for
federal government employees and applicants. In addition, most states have
their own laws prohibiting employment discrimination on the basis of
disability. Some of these state laws may apply to smaller employers and
provide protections in addition to those available under the ADA.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the
employment provisions of the ADA. This is part of a series of
question-and-answer documents addressing particular disabilities in the
workplace.(1) It explains how the ADA might apply to job applicants and
employees with vision impairments. In particular, this document discusses:

*	when a vision impairment is a disability under the ADA;
*	under what circumstances an employer may ask an applicant or
employee questions about a vision impairment;
*	what types of reasonable accommodations employees with visual
disabilities may need; and,
*	how an employer can prevent harassment of employees with visual
disabilities or any other disability.


GENERAL INFORMATION ABOUT VISION IMPAIRMENTS


Estimates vary as to the number of Americans who are blind and visually
impaired. According to one estimate, approximately 10 million people in the
United States are blind or visually impaired.(2) Other estimates indicate
that one million adults older than the age of 40 are blind, and 2.4 million
are visually impaired.(3) Over the next 30 years, as the baby-boomer
generation ages, the number of adults with vision impairments is expected to
double.(4) Recent figures also indicate that only 46% of working-age adults
with vision impairments and 32% of legally blind working-age adults are
employed.(5) 

The Centers for Disease Control and Prevention (CDC) define "vision
impairment" to mean that a person's eyesight cannot be corrected to a
"normal level."(6) Vision impairment may result in a loss of visual acuity,
where an individual does not see objects as clearly as the average person,
and/or in a loss of visual field, meaning that an individual cannot see as
wide an area as the average person without moving the eyes or turning the
head. There are varying degrees of vision impairments, and the terms used to
describe them are not always consistent. The CDC and the World Health
Organization define low vision as a visual acuity between 20/70 and 20/400
with the best possible correction, or a visual field of 20 degrees or
less.(7) Blindness is described as a visual acuity worse than 20/400 with
the best possible correction, or a visual field of 10 degrees or less. In
the United States, the term "legally blind," means a visual acuity of 20/200
or worse with the best possible correction, or a visual field of 20 degrees
or less. Although there are varying degrees of vision impairments, the
visual problems an individual faces cannot be described simply by the
numbers; some people can see better than others with the same visual
acuity.(8)

There are many possible causes for vision impairment, including damage to
the eye and the failure of the brain to interpret messages from the eyes
correctly. The most common causes of vision impairment in American adults
are: diabetic retinopathy,(9) age-related macular degeneration,(10)
cataracts,(11) and glaucoma.(12) Additionally, many individuals have
monocular vision - perfect or nearly perfect vision in one eye, but little
or no vision in the other. Vision impairment can occur at any time in life,
but as a person's age increases, so does the likelihood that he or she will
have some form of vision impairment.(13)

Persons with vision impairments successfully perform a wide range of jobs
and can be dependable workers. Yet, many employers still automatically
exclude them from certain positions based on generalizations about vision
impairments and false assumptions that it would be too expensive, or perhaps
even too dangerous, to employ them. Thus, employers may erroneously assume
that any accommodation that would allow a person with a vision impairment to
do her job would be too costly. Employers also may have liability concerns
related to the fear of accidents and/or injuries.

1. When is a vision impairment a disability under the ADA? 

A vision impairment is a disability if: (1) it substantially limits a major
life activity; (2) it was substantially limiting in the past (i.e., if an
individual has a "record of" a substantially limiting impairment); or (3) an
employer "regards" or treats an individual as having a substantially
limiting vision impairment. Major life activities are those basic
activities, including seeing, that an average person can perform with little
or no difficulty.

Whether a vision impairment actually substantially limits a major life
activity depends on how significant the visual loss is. While a person who
has no sight at all is obviously substantially limited in seeing, the
assessment of most vision impairments requires a more individualized
approach. Although mitigating measures that the individual uses, such as
corrective lenses and compensatory strategies that the body has developed,
must be taken into account, they do not automatically exclude someone from
coverage under the first part of the ADA's definition of "disability."

Example 1: An individual with a vision impairment wears eyeglasses, but they
improve his poor vision only slightly. Even with eyeglasses, he cannot drive
and needs strong magnification to read standard-sized print. This individual
is substantially limited in seeing.

Mitigating measures do not include devices, reasonable accommodations, or
compensatory strategies that simply compensate for the fact that an
individual is substantially limited in seeing. For example, a totally blind
person still meets the ADA's first definition of "disability" even if she
can move about freely with the use of a white cane or service animal, can
work with assistive technology or a reader, and can use her hearing to do
what others can do using sight (e.g., cross a street).

Individuals with monocular vision also may meet the ADA's first definition
of disability.(14)

Example 2: An individual lost all of his sight in one eye as the result of
an accident several years ago. He has learned some compensatory strategies,
such as turning his head slightly to adjust for his loss of visual field and
using shadows, highlights, and other visual cues to judge longer distances.
However, he has loss of both peripheral vision and stereopsis (the ability
to combine two retinal images into one that people with vision in both eyes
accomplish easily). The loss of peripheral vision means that he is limited
in seeing people or objects on his blind side and must position himself
accordingly in meetings, theaters, or while walking down the street. Because
he cannot see people approaching or standing on that side, he must rely on
his hearing to detect that someone is near him and then must turn his head
to see the person. The loss of stereopsis means that he has difficulty
judging distances within a six-foot range, and thus cannot use his vision to
guide him in reaching for objects or putting objects down on a table or
other surface. Because of his lack of stereopsis, he must rely on memory or
the sense of touch rather than vision to guide him in picking up and placing
objects such as tools, pots and pans, books and pens. Similarly, he must
rely on memory and tactile clues to negotiate stairs and stepping on and off
curbs. All such tasks are more difficult for him because of his loss of
vision and take him longer to perform than they take the average person.
This individual still is substantially limited in seeing, despite the use of
compensatory strategies such as using hearing, touch, or memory to
substitute for his lack of vision in one eye.

Some individuals with monocular vision have learned to compensate visually
(e.g., by turning their head or using "monocular cues," such as shadows and
highlights, to judge distances) effectively enough that they no longer are
substantially limited. These individuals (as well as many others), however,
still may meet one of the ADA's other definitions of disability.

A person who has a record of an impairment that substantially limited a
major life activity in the past or who is regarded by his employer as having
such an impairment also has a disability and, therefore, is covered by the
ADA. Although the second part of the definition -- having a record of a
substantially limiting impairment -- does not apply frequently to
individuals with vision impairments, examples of when it might apply would
include situations in which someone's vision has been corrected surgically,
or when an individual with monocular vision that was once substantially
limiting has developed compensatory strategies over time.

Being "regarded as" substantially limited in seeing is a more common basis
for coverage. 

Example 3: As part of the hiring process for a manufacturing position, an
employer requires a physical exam, including a vision test. An applicant
with monocular vision fails the vision test, which requires a minimum of
20/40 vision in the better eye with correction, and no less than 20/100
vision in the weaker eye. The physician who conducted the physical
examination recommends to the human resources department that the applicant
not be hired, indicating in a notation on the application: "Failed vision
test; essentially blind in one eye and lacks depth perception; recommend
against hiring for any manufacturing work." In accordance with its typical
practice of deferring to the recommendation of the employer's doctor, the
human resources department withdraws its offer of employment to the
applicant, never assessing whether she can in fact perform the essential
functions of the job. If the doctor's statement that the applicant should
not be hired for "any manufacturing work" meant that the applicant was
unsuitable for manufacturing work generally and not just for a particular
job in the employer's plant, the employer will have regarded the applicant
as substantially limited in working in a class of jobs.


OBTAINING AND USING MEDICAL INFORMATION


Job Applicants


Before an Offer of Employment is Made


The ADA limits the medical information that an employer may seek from a job
applicant. An employer may not require a job applicant to submit to a
medical examination or ask about an applicant's disability before making a
job offer. This means, for example, that an employer may not:

*	ask about any medical procedures an applicant has had related to her
vision (e.g., whether the applicant ever has had eye surgery);
*	inquire as to whether the applicant uses any prescription
medications, including medications for conditions related to the eye; and
*	ask whether an applicant has any condition that may have caused a
vision impairment (e.g., whether the applicant has diabetes if the employer
suspects that the applicant has retinopathy).

An employer, however, may ask all applicants if they will need a reasonable
accommodation for the application process. For example, an employer may
include on an application contact information for the person who will handle
accommodation requests. Additionally, an employer may ask all applicants
whether they can meet job-related requirements and may conduct non- medical
tests that require the use of vision and that measure the applicant's
ability to perform job-related functions. 

Example 4: An employer who runs a warehouse may ask all applicants if they
can read the labels on products so that they can be stocked in the
appropriate places, or may ask each applicant to demonstrate that he or she
can perform this function.

2. Are there ever situations in which an employer may ask about an
applicant's visual disability before making a job offer?

Yes. If a disability is obvious (or if an applicant discloses that she has a
visual disability) and an employer reasonably believes the applicant will
require a reasonable accommodation to perform the job, the employer may ask
whether the applicant will need a reasonable accommodation and, if so, what
type.

Example 5: A woman appears with her guide dog for an interview for a job as
a school principal. The position requires significant reading. Because her
vision impairment is obvious, the employer may ask her if an accommodation
will be needed to perform functions that involve reading and, if so, what
type.

An employer also may ask a person with a non-obvious vision impairment who
requests a reasonable accommodation for the application process to provide
documentation demonstrating that the condition is a disability and that the
accommodation is necessary. (For more information about an employer's right
to request reasonable documentation, see Question 12, below.)


After an Offer of Employment is Made


3. May an employer ask about an applicant's vision impairments or conduct
medical examinations to test vision after making a job offer?

Yes. Once the employer has made a job offer, it may ask questions about the
applicant's health (including questions about whether the applicant has a
visual disability) and may ask for, or require, a medical examination, as
long as all applicants for the same type of position are treated the same
(i.e., all applicants are asked the same questions and are subject to the
same examination). The job offer must be "real," meaning that the employer
has obtained and evaluated all non-medical information that was reasonably
available before making the offer.

If an employer learns from a post-offer inquiry or medical examination that
an applicant has a vision impairment, it may ask medically related follow-up
questions or may conduct medically- related examinations. An employer may
not withdraw an offer from a person whose vision impairment is a disability,
however, unless it can demonstrate that the applicant is unable to perform
the essential functions of the position, with or without a reasonable
accommodation, or that the applicant will pose a direct threat to safety.
(For more information on "direct threat," see Question 15, below.)

Example 6: A county sheriff with monocular vision applied for a position
with the state police as a criminal investigator. He was highly qualified
for the job and was conditionally offered a position pending qualification
under the state police department's medical criteria for criminal
investigators. The doctor who conducted the medical examination of the
applicant determined that because of his monocular vision he did not meet
the state's standards, and the conditional offer of employment was
withdrawn. The state police department did not violate the ADA by requiring
the medical exam. However, if the applicant's monocular vision is a
disability, the department must be prepared to show that the applicant was
unable to do the essential functions of the job, with or without a
reasonable accommodation, or that he would have posed a direct threat if he
had been hired.


Employees


4. When may an employer ask an employee questions or require a medical
examination related to the employee's vision impairment? 

The ADA strictly limits the circumstances under which an employer may ask
questions about an employee's medical condition or require the employee to
undergo a medical examination. Generally, an employer may ask an employee
for medical information if the employer has reason to believe that: (1)
there is a medical explanation for some change in the employee's job
performance; or (2) the employee's medical condition may pose a direct
threat to safety. (For other situations in which an employer may ask about
an employee's vision impairments, see Question 5, below).

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

Poor job performance, however, often is unrelated to a medical condition
and, therefore, should generally be handled in accordance with an employer's
existing policies concerning performance.

Example 8: A receptionist, with a known degenerative eye condition, has not
been answering all the calls that come in to the office in her usual
friendly manner. The employer may counsel the receptionist about how she
answers the phone, but may not ask her questions about her eye condition
unless there is evidence that this may be the reason for her changed
demeanor.

5. Are there other instances when an employer may ask an employee about a
vision impairment? 

Yes. An employer may ask an employee with a non-obvious vision impairment
who has requested a reasonable accommodation for documentation demonstrating
that he has a disability and needs the accommodation. (See Question 12,
below).

In addition, an employer may ask an employee with a vision impairment to
justify the use of sick leave by providing a doctor's note or other
explanation, as long as it requires all employees to do so.

Example 9: An employer's leave policy requires all employees who are absent
because of a medical appointment to submit a note from their doctor
verifying the appointment. An employee who uses sick leave for an
ophthalmological examination must submit a note to this effect from her
doctor in accordance with the policy. However, the employer may not require
that the note include information about the results of the examination, or a
statement about the employee's diagnosis or treatment (if any).

Finally, medical information about a vision impairment may be collected and
an eye examination may be conducted as part of an employer's voluntary
wellness program. For example, an employer may offer a voluntary annual
screening for glaucoma so that employees can promptly obtain treatment where
necessary. A wellness program is voluntary if an employee is neither
required to participate, nor penalized for non-participation.(15)


Keeping Medical Information Confidential


An employer must keep all medical information separate from general
personnel files and treat it as a separate, confidential medical record.
Issues regarding confidentiality more frequently arise in regard to
non-obvious conditions; however, even if the impairment is obvious,
information about it must be kept confidential.

Example 10: Most of the paralegals in a large firm have outdated computer
monitors. A paralegal who is on medication for a disability that causes
vision problems requests, and is given, a new monitor with a special program
that allows her to see the screen better. If the other paralegals ask why
she has a new screen and they do not, the employer may not divulge any
information about her impairment, including the fact that the monitor is a
reasonable accommodation.

6. Are there any exceptions to the ADA's confidentiality requirements that
might justify disclosing information about an employee's vision impairment? 

Yes. Information that is otherwise confidential under the ADA may be
disclosed:

*	to supervisors and managers who need the information in order to
provide a reasonable accommodation or to meet the employee's work
restrictions;
*	to first aid and safety personnel if the employee would need
emergency treatment or other assistance in the event of an emergency (e.g.,
in case of a fire), because of his vision impairment;
*	to officials who are investigating compliance with the ADA and
similar state or local laws;
*	to state workers' compensation offices or workers' compensation
insurance carriers in accordance with state workers' compensation laws; or
*	for insurance purposes.


ACCOMMODATING INDIVIDUALS WITH VISUAL DISABILITIES


An accommodation is any modification or adjustment to a job or work
environment that will permit a qualified individual with a disability to
apply for a job, to perform a job's essential functions (i.e., fundamental
duties), or to enjoy equal benefits and privileges of employment. Under the
ADA, employers must provide reasonable accommodations to the known physical
or mental limitations of persons with disabilities. Generally, an individual
with a disability must request a reasonable accommodation before an employer
will have an obligation to provide one. Once an accommodation has been
requested, an employer should engage in an interactive process to determine
whether an individual has a disability that requires an accommodation and,
if so, must make a reasonable effort to determine the appropriate
accommodation. Accommodations vary depending on the needs of the person with
the disability.

7. What types of reasonable accommodations may people with visual
disabilities need? 

People with visual disabilities may need one or more of the following
accommodations:

*	Assistive technology, including: 

*	A closed circuit television system (CCTV) for reading printed
materials
*	An external computer screen magnifier
*	Cassette or digital recorders 
*	Software that will read information on the computer screen
*	An optical scanner that can create documents in electronic form from
printed ones

*	Written materials in an accessible format, such as in large print,
Braille, audio cassette, or computer disk 
*	Modification of employer policies to allow use of a guide dog in the
workplace
*	Modification of an employment test
*	A reader
*	A driver or payment for the cost of transportation to enable
performance of essential functions
*	An accessible website
*	Modified training or training in the use of assistive technology 

Example 11: An employer has decided to upgrade its computer programs. In
order to teach its staff about the new systems, it has set up five
"hands-on" training classes in which groups of employees will be shown how
to execute various functions using the new software and then will have an
opportunity to complete a series of exercises using those functions with
guidance from the instructor. Most of the demonstrations and exercises will
involve use of a computer mouse to execute functions. A blind employee who
uses a screen reading program is unable to use a computer mouse effectively
and will require individualized instruction that will enable her to learn
how to perform necessary functions using keyboard commands.

*	A modified work schedule

Example 12: A blind employee does not have easy access to public
transportation and must rely on paratransit service to get to work most
mornings. He asks that, on days when his ride to work arrives after the
employer's usual 8:30 a.m. start time, he be allowed to work later in the
evening to make up the time rather than being required to take annual leave
or face discipline for tardiness. The employer must grant this accommodation
as long as it would not result in undue hardship.

*	Time off, in the form of accrued paid leave or unpaid leave if paid
leave has been exhausted or is unavailable

Example 13: An employer provides a total of three weeks of leave (sick and
annual leave) per employee each year. An employee with a degenerative eye
condition has, over time, lost most of her vision and has decided to start
using a guide dog. Training the guide dog will require her to attend a
six-week residential program. Although the six weeks of leave that are
needed exceed the amount of leave provided to each employee, the employer
must provide additional unpaid leave as a reasonable accommodation, absent
undue hardship. The same rule would apply if the employee needs time off for
treatment related to a visual disability.

*	Reassignment to a vacant position

Example 14: A city police officer is shot and blinded during an attempt to
stop a robbery. He no longer is able to perform his job as a police officer,
but he is qualified for a vacant 9-1-1 emergency operator position. The job
pays less than a police officer, but it is the closest vacant position in
terms of pay, status, and benefits for which the officer is qualified. The
city must reassign the officer to the 9-1-1 emergency operator position as a
reasonable accommodation.

Although these represent some examples of the types of accommodations
commonly requested by applicants or employees with visual disabilities,
other employees may need different changes or adjustments.(16) Further,
although a particular accommodation may work for one person, an employer
should not assume that the same accommodation will work for another person
with the same apparent visual disability.

8. What kinds of reasonable accommodations are related to the "benefits and
privileges" of employment? 

Reasonable accommodations related to the "benefits and privileges" of
employment include accommodations that are necessary to provide individuals
with disabilities access to facilities or portions of facilities to which
all employees are granted access (e.g., employee break rooms and
cafeterias), access to information communicated in the workplace, and the
opportunity to participate in employer-sponsored training and social events.

Example 15: An employer offers employees opportunities to accept six-month
assignments to jobs outside of their work group or department. The temporary
assignments are considered valuable training opportunities that can lead to
employee advancement. An employee with a visual disability, who has worked
successfully in her current position with only slight modifications to her
computer equipment, requests a temporary assignment to a position that will
involve considerably more reading and asks that a part-time reader be
provided. The employer may not deny the temporary assignment because of the
need to make a reasonable accommodation, but must provide a reader or some
other effective accommodation if this would not result in undue hardship.

Example 16: An employer typically posts job openings on bulletin boards. An
employee with a visual disability requests that electronic notices of all
job postings be emailed to him so that he will have timely notice of the
postings. Unless this would result in undue hardship, the employer must
provide this accommodation.

Example 17: An employer holds a retirement party for a long-time employee.
The event includes a dinner and various presentations by the employee's
co-workers and company management. A formal program is printed for the
event, and an employee with a visual disability requests a copy of the
program in large print. The employer must provide this accommodation, absent
undue hardship.

9. How does a person with a vision impairment request an accommodation? 

The request for a reasonable accommodation must be communicated to the
employer. However, no magic words (e.g., "reasonable accommodation" or
"ADA") are needed. The request may be made in plain English, orally, or in
writing, and it may come from the applicant/employee or from a family
member, friend, or other representative.

Example 18: A blind man calls regarding a job opening he heard advertised on
the radio. The employer explains that part of the application process is a
written exam and part is an in-person interview. The man simply says that he
will need some help with the exam because of his impairment. This is a
request for a reasonable accommodation.

Example 19: While an employee has been out on extended medical leave for her
diabetes, her visual disability has gradually gotten worse. When she returns
to work, she presents a note from her doctor stating that she will need
"some assistance" in order to perform the essential functions of the job.
This is a request for a reasonable accommodation.

10. Does an employer have to grant every request for a reasonable
accommodation? 

No. An employer does not have to provide a reasonable accommodation if doing
so would be an undue hardship. Undue hardship means that providing the
reasonable accommodation would result in significant difficulty or expense.

In determining whether the provision of a particular accommodation would
result in undue hardship, an employer should consider not only the cost of
the accommodation in relationship to its own resources, but also other
resources that may be available in the form of tax incentives or funding
from third parties. For example, there are federal tax credits and
deductions to help offset the cost of accommodations,(17) and some states
may offer similar incentives. Additionally, applicants or employees who are
clients of a state's vocational rehabilitation system may be eligible for
funding to pay for workplace accommodations. If a requested accommodation is
too difficult or expensive, an employer must determine whether there is
another easier or less costly accommodation that would meet the employee's
needs. 

An employer does not have to remove an essential job function (i.e., a
fundamental job duty), lower production standards, excuse violations of
conduct rules that are job-related and consistent with business necessity,
or provide employees with personal use items, such as eyeglasses or other
devices that are used both on and off the job. 

11. Does an employer have to provide the specific reasonable accommodation
the person wants? 

No. The employer may choose among different reasonable accommodations as
long as the chosen accommodation is effective. Therefore, as part of the
interactive process, the employer may offer more than one suggestion for a
reasonable accommodation. Where two possible reasonable accommodations
exist, and one costs more or is more burdensome than the other, the employer
may choose the less expensive or less burdensome option as long as it is
effective. Similarly, when there are two or more effective accommodations,
the employer may choose the one that is easier to provide. The preference of
the person with the disability should be given primary consideration.

Example 20: An editor for a publishing company has a visual disability and
needs magnification to read text. She asks the company to hire a full-time
reader for her. The employer is able to purchase a computer program that
will magnify text on the screen and speak the words to her. If this is
cheaper and easier for the employer to do, and allows the editor to do her
work just as effectively, then it may be provided as a reasonable
accommodation.

Example 21: A blind job applicant requests a reader for an employment test.
The employer requires the applicant to take the test in Braille instead,
although he has told the employer he is not proficient in Braille. In this
situation, because providing the test in Braille is not an effective
accommodation, the employer must provide a reader unless to do so would be
an undue hardship.

12. May an employer ask for documentation when a person requests a
reasonable accommodation because of a vision impairment? 

Sometimes. When a person's vision impairment is not obvious, the employer
may ask the person to provide reasonable documentation about how the
condition limits major life activities (i.e., whether the person has a
disability) and why a reasonable accommodation is needed. The request for
documentation must be reasonable. An employer may not ask for information
about conditions unrelated to the one for which accommodation has been
requested or more information than is necessary for the employer to
determine whether an accommodation is needed.

Example 22: A customer service representative with a non-obvious vision
impairment requests a larger computer monitor. The employee's
ophthalmologist provides a letter describing the employee's impairment and
its limitations. The letter explains that the employee cannot drive and can
read standard-sized print but only very slowly, for short periods of time,
and with considerable effort. The condition is not expected to deteriorate
further, but no improvement is expected either. The ophthalmologist
concludes that providing some kind of magnification device for the computer
or a larger monitor would be helpful. The employee has provided sufficient
documentation that his eye condition is an ADA disability and that he needs
a reasonable accommodation. The employer may not request further
documentation, such as the results of all the tests conducted to diagnose
the condition.

13. May an employer be required to provide more than one reasonable
accommodation for the same person with a disability? 

Yes. Certain individuals with visual disabilities may require only one
reasonable accommodation, while others may need more than one. Additionally,
because the obligation to provide reasonable accommodation is ongoing, an
employer may have to provide a different reasonable accommodation when an
employee's needs related to a visual disability or the nature of a job
change.

Example 23: An employee who is blind has assistive technology for his
computer that works with the employer's network and enables him to send and
receive email messages easily. When the employer upgrades computer equipment
for all employees, it must provide new or updated assistive technology so
that the blind employee will be integrated into the new networks, absent
undue hardship.

Example 24: An employee with retinitis pigmentosa, a degenerative eye
condition that results, over time, in total or near total blindness, has
been able to read printed materials related to her job with a magnifier and
some adjustments to the lighting in her work area. When she is no longer
able to do this, she asks for a reader. Absent undue hardship, the employer
must provide a reader or some other effective accommodation.

14. Is an employer required to provide a reasonable accommodation for a
vision impairment that alone does not rise to the level of a disability but
results from an underlying disability? 

Yes. An employer must accommodate a vision impairment that results from
another disability even if the vision impairment is not itself substantially
limiting.

Example 25: An applicant with insulin-dependent diabetes has developed a
vision impairment. He wants to apply for a job as a hotel concierge. One
part of the application process is a written test. Even if his vision
problems alone do not rise to the level of a substantial limitation, the
employer is required to make accommodations for this employee because his
vision impairment results from his diabetes, which is a disability.
Accordingly, the employer might allow this applicant more time to take the
written portion of the test if that would accommodate his limitation.


SAFETY CONCERNS


15. When may an employer exclude someone with a vision impairment because of
concerns that the individual will pose a safety risk?

When it comes to safety concerns, an employer should be careful not to act
on the basis of myths, fears, or stereotypes about vision impairments.
Instead, the employer must evaluate each individual's knowledge, skills, and
experience, as well as how the impairment affects his or her ability to
perform a particular job safely. In other words, in order to exclude someone
whose vision impairment is a disability under the ADA from a job for safety
reasons, an employer must determine that a "direct threat" exists. A "direct
threat" is a significant risk of substantial harm to an individual with a
disability or to others that cannot be reduced or eliminated through
reasonable accommodation.(18) This assessment must be based on objective,
factual evidence that takes into account the nature of the risk, the
severity of the potential harm, the likelihood that the harm will occur, and
the imminence of the harm, as well as the availability of any reasonable
accommodation that might reduce or eliminate the risk.

Example 26: An assembly line worker has lost much of his vision, but because
he has held his job for more than ten years, he can effectively perform the
job's functions using a combination of his remaining limited vision and
touch. The employer's normal practice is to flash an alarm light when there
is an assembly line malfunction that could cause injuries to workers. Rather
than discharging the employee because he no longer is able to see the
flashing light and may therefore be in harm's way, the employer should
consider installing an audio alarm to accommodate him.

Example 27: A blind sous-chef who began working as a line cook and has
worked in restaurants for 15 years in positions of increasing levels of
responsibility applies for a job at a newly opened restaurant. Although it
initially takes him slightly more time than other workers to learn the
layout of the kitchen, once he does so he is able to move about easily and
safely. The combination of his experience, his use of touch to perform some
tasks that other workers perform visually, and a few simple accommodations,
such as Braille labels on oven controls, enables him to use all kitchen
equipment and to supervise kitchen staff. The restaurant may not refuse to
hire this chef on the ground that he cannot work safely in a busy kitchen.

Example 28: An individual with a severe visual disability is hired to work
as a line cook. He has difficulty, however, learning the layout of the
kitchen and barely avoids bumping into three different co-workers, two of
whom were carrying trays of food just removed from the oven and one who was
carrying a pot of boiling water. He also has been warned several times about
placing his hands too close to open flames and fryers filled with hot oil,
but he has failed to do anything to correct these problems. This individual
poses a direct threat to his own health and safety and to the health and
safety of others.


"OTHER FEDERAL LAWS" DEFENSE


16. May an employer refuse to hire an individual with a visual disability
because another federal law requires it to do so? 

Yes. There are federal safety laws that may require an employer to exclude
individuals with certain kinds of visual disabilities from certain types of
jobs. For example, the U.S. Department of Transportation (DOT) has
regulations that require a certain level of visual acuity for interstate
drivers of commercial motor vehicles weighing more than 10,000 pounds. An
employer may defend a claim of discrimination under the ADA on the ground
that it was complying with the DOT regulation.

However, an employer may not rely on this defense where the other federal
law does not in fact require exclusion of the individual with a disability
(e.g., where the employer applies federal standards to jobs other than those
to which they are specifically intended to apply).

Example 29: A courier service that uses vans and small trucks weighing less
than 10,000 pounds may not use the DOT standards applicable to commercial
motor vehicles weighing more than 10,000 pounds to automatically exclude
applicants with monocular vision from driver jobs. The employer may exclude
a particular applicant with monocular vision only if it can demonstrate that
she would pose a direct threat. (See Question 15, above.)


HARASSMENT


Employers are prohibited from harassing or allowing employees with
disabilities to be harassed in the workplace. When harassment is brought to
an employer's attention, management and/or the supervisor must take steps to
stop it.

17. What constitutes illegal harassment under the ADA?

The ADA prohibits unwelcome conduct based on disability that is sufficiently
severe or pervasive to create a hostile or abusive work environment. Acts of
harassment may include verbal abuse, such as name-calling, behavior such as
offensive graphic and written statements, or conduct that is physically
threatening or harmful or humiliating. The law does not protect workers with
disabilities (or any workers) from merely rude or uncivil conduct. To be
actionable, conduct related to an employee's visual disability must be
perceived by the affected individual as abusive and must be sufficiently
severe or pervasive that a reasonable person would perceive it as hostile
and abusive.

Example 30: A grocery store cashier with a visual disability is frequently
taunted by his co-workers. They regularly ask him how many fingers they are
holding up and take away his white cane and tell him to go find it. This
behavior is actionable disability-based harassment.

18. What should employers do to prevent and correct harassment? 

Employers should make clear that they will not tolerate harassment based on
disability or on any other basis (i.e., race, sex, religion, national
origin, or age). This can be done in a number of ways, such as through a
written policy, employee handbooks, staff meetings, and periodic training.
The employer should emphasize that harassment is prohibited and that
employees should promptly report such conduct to a manager or other
designated official. Finally, the employer should immediately conduct a
thorough investigation of any report of harassment and take swift and
appropriate corrective action. For more information on the standards
governing harassment under federal EEO laws, see
http://www.eeoc.gov/policy/docs/harassment.html.


LEGAL ENFORCEMENT


19. What should someone do who believes that his or her rights under the ADA
may have been violated? 

Any person who believes that his or her employment rights have been violated
on the basis of disability and wants to make a claim against an employer,
must file a charge of discrimination with the EEOC. A third party also may
file a charge on behalf of another person claiming to be aggrieved. For
example, a family member or other representative can file a charge on behalf
of someone with a vision impairment. (All EEOC offices are accessible, and
EEOC provides reasonable accommodations as needed for the charge process.)
The charge must be filed by mail or in person with the local EEOC office
within 180 days from the date of the alleged violation. The 180-day filing
deadline is extended to 300 days if the charge also is covered by a state or
local anti-discrimination law.

The EEOC will notify the employer of the charge and may ask for responses
and supporting information. Before formal investigation, the EEOC may select
the charge for its mediation program, which may prevent a time-consuming
investigation of the charge. Participation in mediation is free, voluntary,
and confidential. 

If the mediation is unsuccessful, the EEOC investigates the charge to
determine if there is "reasonable cause" to believe discrimination has
occurred. If reasonable cause is found, the EEOC will then try to resolve
the charge with the employer. In some cases, where the charge cannot be
resolved, the EEOC will file a court action. If the EEOC finds no
discrimination, or if an attempt to resolve the charge fails and the EEOC
decides not to file suit, it will issue a notice of a "right to sue," which
gives the charging party 90 days to file a court action. A charging party
also may request a notice of "right to sue" from the EEOC 180 days after the
charge was first filed with the Commission and may then bring suit within 90
days after receiving the notice. For a detailed description of the process,
visit our website at http://www.eeoc.gov/employees/charge.cfm. For issues
relating to federal employment, please refer to our website at
http://www.eeoc.gov/facts/fs-fed.html. 


RETALIATION


The ADA prohibits retaliation by an employer against someone who opposes
discriminatory employment practices, files a charge of employment
discrimination, or testifies or participates in any way in an investigation,
proceeding, or litigation. This is true even if the person who files the
charge is not a person with a disability. Persons who believe that they have
been retaliated against may file a charge of retaliation with the EEOC as
described above.

  _____  

1. See Questions and Answers About Diabetes in the Workplace and the
Americans with Disabilities Act (ADA),
http://www.eeoc.gov/facts/diabetes.html, Questions and Answers About
Epilepsy in the Workplace and the Americans with Disabilities Act (ADA),
http://www.eeoc.gov/facts/epilepsy.html, Questions and Answers About People
with Intellectual Disabilities in the Workplace and the Americans with
Disabilities Act, http://www.eeoc.gov/facts/intellectual _disabilities.html
<http://www.eeoc.gov/facts/intellectual_disabilities.html> , and Questions
and Answers About Cancer in the Workplace and the Americans with
Disabilities Act (ADA), http://www.eeoc.gov/facts/cancer.html.

2. American Foundation for the Blind (AFB), http://www.afb.org.

3. Vision Problems in the U.S.: Prevalence of Adult Impairment and
Age-Related Eye Disease in America (2002), joint report by the National Eye
Institute and Prevent Blindness America,
http://www.nei.nih.gov/eyedata/pdf/VPUS.pdf.

4. Id.

5. Job Accommodation Network, Work-Site Accommodation Ideas for Individuals
with Vision Impairments, citing AFB statistics from 2000,
http://www.jan.wvu.edu/media/Sight.html.

6. CDC, National Center on Birth Defects and Developmental Disabilities
(NCBDDD), http://www.cdc.gov/ncbddd/dd/ddvi.htm.

7. A person with a visual acuity of 20/70 can see at 20 feet what a person
with normal sight can see at 70 feet. A person with a visual acuity of
20/400 can see at 20 feet what a person with normal vision can see at 400
feet. The visual fields normally extend outward over an angle of about 90
degrees on either side of the midline of the face. A normal visual field is
about 160-170 degrees horizontally. Id.

8. http://www.cdc.gov/ncbddd/dd/ddvi.htm.

9. Diabetic retinopathy is the term used to describe changes in the blood
vessels of the retina due to diabetes, which can cause vision impairments
and blindness. Not all people with diabetes develop this condition. See
Major Causes of Blindness (National Federation of the Blind 1995), at
http://www.blind.net (follow "General Information About Blindness"
hyperlink; then follow "Major Causes of Blindness" hyperlink).

10. Macular degeneration refers to the breakdown of the macula, the part of
the retina which forms the sharpest view of an object. The disorder, which
occurs with age, varies in the speed with which it affects people and often
can be corrected with magnifying lenses. Id.

11. Cataracts are opacities and clouding of the lens of the eye that block
the passage of light. They can be present at birth but tend to increase with
age. They often can be surgically corrected. Id.

12. Glaucoma is a condition characterized by a build-up of the clear fluid
in the forward part of the eye that does not drain properly and causes
increased pressure inside the eye. If left uncontrolled, the condition can
cause damage to the eye that results in blurred vision, a narrow field of
vision, and eventually total blindness. Glaucoma can often be successfully
controlled with medication, though surgery is sometimes necessary. Glaucoma
is responsible for one of every seven or eight cases of blindness. Id.

13. National Center for Health Statistics, U.S. Dept. of Health and Human
Services, Summary Health Statistics for U.S. Adults: National Health
Interview Survey, 2002, Vital and Health Statistics, Series 10, No. 222
(DHHS Publication No. 2004-1550) (July 2004).

14. See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999)(While
monocular vision "inevitably leads to some loss of horizontal field of
vision and depth perception" and "ordinarily" will constitute a disability,
the ADA requires individuals to prove, on a case-by-case basis, that their
limitations are "substantial.")

15. See EEOC Enforcement Guidance: Disability-Related Inquiries and Medical
Examinations of Employees Under the Americans with Disabilities Act (ADA) at
Question 22 (July 26, 2000),
http://www.eeoc.gov/policy/docs/guidance-inquiries.html.

16. See the Job Accommodation Network's Searchable Online Accommodation
Resource (SOAR), http://www.jan.wvu.edu/soar/vision.html.

17. See Know the Rules Regarding Tax Incentives for Improving Accessibility
for the Disabled (2003),
http://www.irs.gov/businesses/small/article/0,,id=113382,00.html. For
additional information on tax benefits, contact the U.S. Internal Revenue
Service at 800-829-3676 (voice) or 800-829-4059 (TDD).

18. 29 C.F.R. § 1630.2(r).

  _____  

This page was last modified on January 19, 2011.

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Professional Social Worker/Counselor

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