Legal Requirements of Hiring a Person with a Visual Impairment
The Americans with Disabilities Act of 1990 (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability such as blindness or visual impairment. The ADA also outlaws discrimination against individuals with visual disabilities in State and local government services, public accommodations, transportation and telecommunications. The ADA prohibits job discrimination. This part of the law is enforced by the U.S. Equal Employment Opportunity Commission and State and local civil rights enforcement agencies that work with the Commission.
Job discrimination against people with disabilities is illegal if practiced by:
- private employers,
- state and local governments,
- employment agencies,
- labor organizations and
- labor-management committees.
The part of the ADA enforced by the EEOC outlaws job discrimination by all employers, including State and local government employers, with 15 or more employees. Another part of the ADA, enforced by the U.S. Department of Justice (DOJ), prohibits discrimination in State and local government programs and activities, including discrimination by all State and local governments, regardless of the number of employees, since January 26, 1992.
What Employment Practices are Covered?
The ADA makes it unlawful to discriminate in all employment practices such as:
- job assignments
- all other employment related activities.
The ADA prohibits an employer from retaliating against an applicant or employee for asserting his or her rights under the ADA. The Act also makes it unlawful to discriminate against an applicant or employee, whether disabled or not, because of the applicant's family, business, social or other relationship or association with another individual with a disability.
Essential Functions of a Job
As an employer, you must know the "essential functions or duties of a job" that an employee must be able to carry out—with or without reasonable accommodation—in order to be protected from job discrimination violations by the ADA. As the employer you cannot refuse to hire anyone because their disability prevents them from performing duties that are not essential to the job.
Most jobs are made up of more than one function. Very few people go to work and do the exact same thing, all day, every day. Essential functions are those job duties and skills which are necessary to be able to do in order to perform the job. In other words, without them the job could not be done.
This means two things:
- The individual must satisfy the employer's requirements for the job, such as education, employment experience, skills or licenses.
- The individual must be able to perform the essential functions of the job with or without reasonable accommodation.
How Are Essential Functions Determined?
Essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation. You should carefully examine each job to determine which functions or tasks are essential to performance. (This is particularly important before taking an employment action such as recruiting, advertising, hiring, promoting or firing).
Factors to consider in determining if a function is essential include:
- whether the reason the position exists is to perform that function,
- the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
- the degree of expertise or skill required to perform the function.
Your judgment as to which functions are essential, and a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions. Other kinds of evidence that EEOC will consider include:
- the actual work experience of present or past employees in the job,
- the time spent performing a function,
- the consequences of not requiring that an employee perform a function, and
- the terms of a collective bargaining.
Take the position of a receptionist for a blind or visually impaired person.
Essential job functions might include:
- Answering the telephone and assisting callers.
- Recording messages for department personnel.
- Greeting clients and customers.
There might also be Marginal Job Functions which might include:
- Serving coffee to clients and customers.
- Escorting clients to staff offices.
For this receptionist position, an applicant would need to be able to perform the essential job functions (duties) of this position with reasonable accommodation. The marginal or non-essential job functions are those that could be redesigned or reassigned to other employees, if necessary.
Whether or not a particular duty is considered marginal will depend on:
- The importance of the duty to your company's operation;
- Its frequency;
- If there are sufficient staff to reassign the marginal duty to other employees;
- If the marginal duty can be redesigned or performed in another way.
In other words, if the duty is viewed as important to your company's operation, the duty is performed with frequency, there isn't sufficient staff to reassign the marginal duty, and the duty can't be redesigned or performed in another way, the duty would be considered an essential function of the position.
Reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, to perform the essential functions of a job, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. For example, reasonable accommodation may include:
- providing adaptive or modifying equipment or devices,
- job restructuring,
- part-time or modified work schedules or job sharing,
- reassignment to a vacant position,
- adjusting or modifying examinations, training materials, or policies,
- providing readers and interpreters,
- making the workplace readily accessible to and usable by an individual who is blind or severely visually impaired;
- modified lighting according to the individual employee: lights may be brighter or the environment may need multiple light sources.
An employer is required to provide a reasonable accommodation to a qualified applicant or employee who is blind or visually impaired unless the employer can show that the accommodation would be an undue hardship -- that is, that it would require significant difficulty or expense. Often applicants with vision loss have worked with the state vocational rehabilitation agency that serves individuals who are blind or visually impaired. The state agency often has already supplied the applicants with specialized equipment such as computer with speech output or large print enhancement, so that cost to the employee or employer may be little to none. The state agency will work with the applicant and the employer to establish what adaptive equipment is needed for the position and what can be provided.
Question & Answer
Q. What can I do to be more prepared to interview a blind or visually impaired applicant?
A. You can get in touch with your state vocational rehabilitation agency that provides services to individuals who are blind or visually impaired. Learn more about the rehabilitation process; visit a rehabilitation site. Observe how people are trained in adaptive techniques to carry out tasks in different ways or with the assistance of assistive technology. Then you will have a greater understanding of how an applicant can do the job you have open and for which you are interviewing. There may also be private agencies serving the blind or visually impaired in your community.
Q. Can an employer ask about an applicant’s disability or require medical examinations?
A . As the employer, you cannot ask applicants if they are disabled or ask about the nature or severity of their disability. An employer can ask questions about function, if the applicant can perform the duties of the job with or without reasonable accommodation. An employer can also ask applicants to describe or demonstrate how, with or without reasonable accommodation, they would perform the duties of the job.
An employer cannot require an applicant to take a medical examination before the applicant is offered a job. Following a job offer, an employer can ask the new employee to pass a required medical examination, but only if all entering employees for that job category have to take the examination. However, an employer cannot reject the impaired applicant because of information about his/her disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer's business. The employer cannot refuse to hire the new employee because of his/her disability if the new employee can perform the essential functions of the job with an accommodation.
Once an employee who is blind or visually impaired has been hired and started work, the employer cannot require a medical examination or ask questions about the employee’s disability unless it is related to the job and necessary for the conduct of the employer's business. Employers may conduct voluntary medical examinations that are part of an employee health program, and may provide medical information required by State workers' compensation laws to the agencies that administer such laws.
The results of all medical examinations must be kept confidential, and maintained in separate medical files.
Q. Does an employee have to pay for a needed reasonable accommodation?
A. No. The ADA requires that the employer provide the accommodation unless to do so would impose an undue hardship on the operation of the employer's business. If the cost of providing the needed accommodation would be an undue hardship, the employee must be given the choice of providing the accommodation or paying for the portion of the accommodation that causes the undue hardship.
Q. Can an employer lower the employee’s salary or pay him/her less than other employees doing the same job because a reasonable accommodation is needed?
A. No. An employer cannot make up the cost of providing a reasonable accommodation by lowering the employee’s salary or paying the employee with a disability less than other employees in similar positions.
Q. As an employer do I have to make non-work areas used by employees, such as cafeterias, lounges, or employer-provided transportation accessible to people with disabilities?
A. Yes. The requirement to provide reasonable accommodation covers all services, programs, and non-work facilities provided by the employer. If making an existing facility accessible would be an undue hardship, the employer must provide a comparable facility that will enable a person with a disability to enjoy benefits and privileges of employment similar to those enjoyed by other employees, unless to do so would be an undue hardship.
Q. If as an employer I have several qualified applicants for a job, am I required to select a qualified applicant with a disability over other applicants without a disability?
A. No. The ADA does not require that an employer hire an applicant with a disability over other applicants because the person has a disability. The ADA only prohibits discrimination on the basis of disability. It makes it unlawful to refuse to hire a qualified applicant with a disability because he is disabled or because a reasonable accommodation is required to make it possible for this person to perform essential job functions.
Q. Can I as an employer refuse to hire an applicant because I believe that it would be unsafe, because of a disability, for him/her to work with certain machinery required to perform the essential functions of the job?
A. The ADA permits an employer to refuse to hire an individual if s/he poses a direct threat to the health or safety of self or others. A direct threat means a significant risk of substantial harm. The determination that there is a direct threat must be based on objective, factual evidence regarding an individual's present ability to perform essential functions of a job. An employer cannot refuse to hire someone because of a slightly increased risk or because of fears that there might be a significant risk sometime in the future. The employer must also consider whether a risk can be eliminated or reduced to an acceptable level with a reasonable accommodation.
Q. If the health insurance I offer my employees does not cover all of the medical expenses related to potential employees with disabilities, does the company have to obtain additional coverage for those employees?
A. No. The ADA only requires that an employer provide employees with disabilities equal access to whatever health insurance coverage is offered to other employees.
Q. As an employer, should I expect an applicant with a disability to disclose that disability during the interview?
A. If the applicant thinks s/he will need a reasonable accommodation in order to participate in the application process or to perform essential job functions, s/he should inform the employer that an accommodation will be needed. Employers are required to provide reasonable accommodation only for the physical or mental limitations of a qualified individual with a disability of which they are aware. Generally, it is the responsibility of the employee to inform the employer that an accommodation is needed.
Q. Can I get additional ADA information and assistance?
A. The EEOC conducts an active technical assistance program to promote voluntary compliance with the ADA. This program is designed to help people with disabilities understand their rights and to help employers understand their responsibilities under the law.
In January 1992, EEOC published a Technical Assistance Manual, providing practical application of legal requirements to specific employment activities, with a directory of resources to aid compliance. EEOC publishes other educational materials, provides training on the law for people with disabilities and for employers, and participates in meetings and training programs of other organizations. EEOC staff will also respond to individual requests for information and assistance. The Commission's technical assistance program is separate and distinct from its enforcement responsibilities. Employers who seek information or assistance from the Commission will not be subject to any enforcement action because of such inquiries.
The Commission also recognizes that differences and disputes about ADA requirements may arise between employers and people with disabilities as a result of misunderstandings. Such disputes frequently can be resolved more effectively through informal negotiation or mediation procedures, rather than through the formal enforcement process of the ADA. Accordingly, EEOC will encourage efforts of employers and individuals with disabilities to settle such differences through alternative methods of dispute resolution, providing that such efforts do not deprive any individual of legal rights provided by the statute. For additional information, visit EEOC’s website: www.eeoc.gov