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Visual Disabilities - Person with visual impairment sitting on orange sofa in office setting with white cane

EEOC Issues Guidance on Visual Disabilities in the Workplace

As an employer, it’s crucial to understand the legal obligations and best practices for accommodating employees with disabilities. On July 26, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) released a new technical assistance document specifically addressing visual disabilities in the workplace. While the EEOC focuses on the Americans with Disabilities Act (ADA), state or local laws may also be relevant to this topic.

The ADA

The ADA is a federal law that prohibits discrimination against qualified individuals with disabilities. Under the ADA, 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 an impairment, or are subject to an adverse action because of an actual or perceived physical or mental impairment.

The ADA applies to private employers with 15 or more employees and all state and local government employers.

Visual Disabilities

The EEOC guidance uses the term “visual disabilities” to refer to disabilities related to an individual’s vision. It uses the term “vision impairments” to encompass various vision-related conditions such as blindness, low vision, limited visual fields, photosensitivity, color vision deficiencies, or night blindness. A vision impairment constitutes a visual disability if it meets one of the three definitions of disability: actual, record of, or regarded as.

Not everyone who wears glasses or contact lenses qualifies as an individual with a disability under the ADA. As the guidance explains, “An individual who uses ordinary eyeglasses or contact lenses that are intended to fully correct their vision typically will not be covered under the ADA as an individual with an ‘actual’ or a ‘record of’ a visual disability.”

Prevalence of Visual Disabilities

According to the U.S. Centers for Disease Control and Prevention (CDC), approximately 18.4% of all U.S. adults are blind or have difficulty seeing even when wearing corrective lenses. Vision impairments can start or occur throughout one’s lifetime and can be caused by various factors, including eye diseases, eye injuries, burns, or surgical complications.

Employer Obligations and Reasonable Accommodations

Many individuals with vision impairments can successfully and safely perform their jobs with or without reasonable accommodation. Under the ADA, employers should not deny employment opportunities to these individuals based on stereotypes or incorrect assumptions. The document provides guidance on when an employer may ask an applicant or employee questions about a vision impairment, what types of reasonable accommodations may be needed, and how to handle safety concerns.

Ultimately, if an employee’s visual disability cannot be accommodated in such a way as to prevent unreasonable safety risks, then an employer is not necessarily required to continue their employment.

Protecting Employees from Harassment

The document also addresses the importance of ensuring that no employee is harassed because of a visual disability. Employers have a responsibility to create a safe and inclusive work environment for all employees, including those with visual disabilities.

Confidentiality

The ADA requires employers to keep medical information about applicants and employees confidential. However, some internal disclosure regarding vision impairments is permissible for legitimate business purposes.

Retaliation

Like most employment discrimination laws, the ADA prohibits retaliation against individuals seeking its protections. Accordingly, employers must not treat employees negatively for any activities related to their rights under the law.

Read More About Visual Disabilities

The EEOC guidance goes into substantial detail regarding issues related to individuals with visual disabilities and impairments. Even if you are not currently addressing concerns regarding such an employee, it is worth reviewing the new guidance as background. If you do face a specific employment issue regarding someone’s vision, the guidance provides a good starting point in determining the legal parameters. However, as mentioned, additional laws may also apply, so it is best to consult with experienced labor and employment counsel as well.

Employee Rights Poster

EEOC Issues New Employee Rights Poster

On October 19, 2022, the United States Equal Employment Opportunity Commission (EEOC) released a new employee rights poster that updates and replaces the previous “EEO is the Law” poster. The EEOC asserts that the new posting makes it easier for employers to understand their legal responsibilities and for workers to understand their legal rights. Covered employers must display the poster in the workplace.

EEOC Chair Charlotte A. Burrows offered, “The poster advances the EEOC’s mission both to prevent unlawful employment discrimination and remedy discrimination when it occurs.”

Employee Rights Poster Contents

The “Know Your Rights: Workplace Discrimination is Illegal”  poster summarizes federal laws prohibiting job discrimination. It includes the process for filing a charge if one believes they have experienced discrimination. It also includes a QR code with a direct link to instructions on how to file. The poster addresses employee protections under Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), and the Genetic Information Nondiscrimination Act (GINA).

Covered Employers

Employers are covered by these statutes and must display the poster if they employ 15 or more employees. (Note, however, that the ADEA only applies to employers with 20 or more employees.)

A second page of the poster only applies to certain covered federal contractors and programs or activities receiving federal financial assistance.

Posting Requirement

Federal law requires employers to display the employee rights poster in a conspicuous location in the workplace where notices to applicants and employees are customarily posted. The EEOC also encourages covered employers to post the notice digitally on their websites. The agency advises that the ADA requires that notices of federal laws be available in a location accessible to those with disabilities that limit mobility or in an accessible format for those with limited ability to see or read. The poster is currently available in English and Spanish; additional languages are forthcoming.

 

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OFCCP Data Disclosure

Federal Contractors Have Short Window to Object to OFCCP Data Disclosure

On August 19, 2022, the Office of Federal Contract Compliance Programs (OFCCP) received a Freedom of Information Act (FOIA) request from a journalist with the Center for Investigative Reporting. This request was for disclosure of EEO-1 Type 2 Consolidated Report data filed by federal government contractors and subcontractors between 2016-2020. The OFCCP is offering covered employers an opportunity to prevent their company’s reports from being made public. But the time available to object to the OFCCP data disclosure is limited.

Freedom of Information Act

The U.S. Freedom of Information Act allows the public to request records from federal agencies. The government must provide available records, subject to various exceptions.

FOIA Exemption 4 protects from disclosure: “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 552(b)(4).

EEO-1 Type 2 Reports

All private sector employers with 100 or more employees and federal contractors with 50 or more employees meeting certain criteria must file EEO-1 reports annually. These reports provide the federal government demographic workforce data, including data by race/ethnicity, sex, and job categories.

EEO-1 Type 2 reports pertain to employers with multiple establishments. Through these reports, employers submit annual demographic data for all U.S.-based employees across their locations.  Employers with only a single establishment typically would file the EEO-1 “Type 1” report.

The pending request FOIA request is limited to Type 2 reports. Accordingly, the OFCCP is not planning to provide data for single-establishment contractors.

Objections to OFCCP Data Disclosure

To protect trade secrets and other potentially sensitive commercial and financial information, the OFCCP is permitting contractors to file an objection to the FOIA request. After an initial deadline of September 19, 2022, the OFCCP is now accepting opt-out requests through October 19, 2022.  Subject contractors who don’t object within this time frame will be assumed to have no objections to disclosing their company’s demographic data.

The OFCCP suggests that contractors address the following questions in any objections:

  • Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.
  • Do you customarily keep the requested information private or closely held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed?
  • Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.
  • If you answered “no” to the previous question, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
  • Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.

To facilitate written objections to the request, the OFCCP has created a Submitter Notice Response Portal.

Additional information for covered contractors is available through the OFCCP’s Submitter Notice Response Portal Frequently Asked Questions.

 

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