November 02, 2005.
SHRM (Society for Human Resource Management).
Unwarranted safety concerns keep too many people with visual impairments out of the workforce, according to Oct. 25 guidance from the U.S. Equal Employment Opportunity Commission (EEOC).
In its new guidance, Questions & Answers About Blindness and Vision Impairments in the Workplace and the Americans with Disabilities Act (ADA), the EEOC advises employers to ensure that safety assessments are based on factual, individualized inquiry, not generalizations. "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," the guidance states.
The number of individual safety assessments that would need to be performed could be significant, considering that approximately 10 million people in the nation currently are blind or have vision impairments. And the number of persons with visual impairments may double over the next 30 years, the EEOC notes in the Q&A, which is its second ADA guidance issued during National Disability Employment Awareness Month (see "EEOC shines spotlight on ADA's 'association' provision," HR News, Oct. 21, 2005).
Further complicating matters for employers, the ADA generally prohibits disability-related inquiries or medical examinations of employees as well as applicants, except at the post-offer stage of the hiring process.
But there are exceptions to these rules. For example, if a disability is obvious and an employer reasonably believes an applicant will need an accommodation, it may ask whether an accommodation will be needed and, if so, what type, the Q&A explains. One exception lets employers ask for medical information when an employee's medical condition may pose a direct threat to safety. But the scope of information requested by employers should not be too broad, the EEOC has clarified in its Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA.
To flesh out how a safety assessment might play out, the EEOC provides two examples in the recent Q&A, one involving an applicant and one an employee.
Suppose a blind sous-chef who has worked in restaurants for 15 years is a job applicant. She discloses she takes slightly longer to learn a kitchen's layout, but assures the employer that once she does she moves about easily and safely. Her experience, use of touch to perform some tasks others perform visually and simple accommodations such as Braille labels on oven controls help her use all kitchen equipment and supervise others. The restaurant may not refuse to employ her on the ground that she cannot work safely in a busy kitchen, according to the EEOC.
Different facts may lead an employer to a completely different conclusion. Suppose a restaurant employs a line cook who has difficulty learning the layout of the kitchen and has barely avoided bumping into three different co-workers. Two were carrying trays of food just removed from the oven. One was lugging a pot of boiling water.
The cook also has been warned repeatedly about placing his hands too close to open flames and fryers filled with hot oil, but seems oblivious to these cautions. The person poses a direct threat to his own health and the safety of others, the guidance states. But the guidance also reminds employers to consider whether an accommodation is available that might reduce or eliminate the risk.
An employer may refuse to hire someone with a visual disability if another federal law actually requires it to do so, the EEOC notes. For example, the U.S. Department of Transportation has regulations setting visual standards for interstate drivers of commercial vehicles weighing more than 10,000 pounds.
Companies may set safety standards that are more stringent than those of the federal government if they can show the standards are justified by business necessity and legitimate business reasons, said Peter Petesch, an attorney with Ford & Harrison in Washington, D.C., in an interview. The direct-threat exception is narrow and far from reassuring to employers that aspire to high safety standards (see "Risky Business," in the November 2005 issue of HR Magazine).
Squirmy stock answers
To stay out of hot water, employers also need to be sure they are protecting the confidentiality of disability-related information, including for workers who have vision impairments covered by the ADA. This is true even if colleagues are asking questions about why someone with a vision impairment has been accommodated with better equipment than they have.
Suppose most paralegals in a large firm have outdated computer monitors. A paralegal with vision problems covered by the ADA requests and is given a new monitor with a special program that lets her 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," the Q&A states.
Petesch said the employer should use the stock answers recommended by the EEOC in its Guidance on Reasonable Accommodation and Undue Hardship Under the ADA. The employer may note that it is following workplace policy for a difficult and personal issue and that the employer would respect that person's privacy in similar circumstances, he explained.
These special buzzwords that are advocated by the agency never quite work, he said. They are essentially a way for employers to tell colleagues "none of your business" or "You want the truth? You can't handle the truth!" But they are weasel words that can keep an employer out of trouble, he added.
On the whole, Petesch said the Q&A is well-written and useful, echoing many themes in older guidelines. In addition to walking employers through the ADA's requirements for safety assessments and confidentiality, the guidance provides numerous examples of different possible accommodations for persons with visual impairments, fewer than half of whom-46 percent-are employed.
For example, an employer may be required to grant more leave than a worker has accrued if he or she has a degenerative eye condition and needs time off to start using a guide dog. That would be the case, for example, if training the guide dog required the person to attend a six-week residential program.
When responding to accommodation requests on how to perform essential functions of the job, employers should be sure to focus on results rather than how a job is traditionally done by a person without a disability, Petesch recommended. The new guidance should help them remember to focus on the purpose of the job, or, as Petesch describes it, "the end game."
Allen Smith, J.D., is senior legal editor for HR News.
For the latest HR-related business and government news, go daily to www.shrm.org/hrnews.
Source URL: http://www.shrm.org/hrnews_published/CMS_014552.asp.
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