Employers should provide modifications such as flexible schedules, readers (whether human or technological) and assistive technology (such as audio alarms) as reasonable accommodations for individuals with visual disabilities, as long as there’s no undue hardship for businesses, the Equal Employment Opportunity Commission (EEOC) stated in updated guidance released July 26. The guidance, “Visual Disabilities in the Workplace and the Americans with Disabilities Act (ADA),” includes numerous examples of accommodations.
The document “provides a reminder of the duty to think creatively when an employee requests an accommodation or is in obvious need of an accommodation,” said Peter Petesch, an attorney with Littler in Washington, D.C.
Flexible Schedules
In one example, the EEOC said that modifying work schedules—including facilitating the use of public transportation—is a possible reasonable accommodation unless it would pose an undue hardship.
If the employee’s work requires close collaboration with colleagues and can be performed only with a team onsite, a flexible schedule might be an undue hardship, depending on the nature of the business, said Jim Paretti, an attorney with Littler in Washington, D.C. But if most of the employee’s work is done independently, the EEOC would say the employer needs to offer this accommodation, he added.
“Evaluating this on a case-by-case basis, we can imagine it might be reasonable where it does not matter what time the employee starts and stops work,” said Mike McClory, an attorney with Cable Huston in Portland, Ore.
For example, he said a flexible schedule might be reasonable for:
- An accountant who reconciles numbers on spreadsheets.
- A customer relations specialist who responds to customer questions and feedback.
- A quality assurance tester who conducts tests on processed foods and enters the results into a databank.
McClory added that after a particularized evaluation, an employer might conclude there are undue hardships in the following circumstances:
- A surgical assistant who works as part of surgery teams that are scheduled for specific times such that surgery may not proceed if everyone is not in place at the designated time.
- A lab worker who works in a clean lab that no one can enter or exit except at specific times.
- A tax advisor who meets with individual clients at scheduled times.
“Where start and end times are critical and/or someone’s delayed arrival would interfere with the operations of the business, that could constitute an undue hardship,” said Lori Armstrong Halber, an attorney with Fox Rothschild in Philadelphia and Warrington, Pa. For example, there might be an undue hardship with a teacher at a school where the first class begins promptly at 8 a.m. and transportation cannot be reasonably relied upon to ensure the teacher arrives in time to be present when students arrive for class.
However, Amy Epstein Gluck, an attorney with FisherBroyles in Washington, D.C., and New York City, said, “Before employers throw in the towel and say an accommodation poses an undue hardship, they have to try other possible accommodations.” That might include, as a last resort, reassignment to an open position.
Readers
In another example, the EEOC notes a reader must be provided to someone with a degenerative eye condition unless the reader would pose an undue hardship to the employer.
The provision of readers to individuals with visual disabilities is similar to providing interpreters for individuals who are deaf or hard of hearing, Petesch said. “Denying the accommodation as being outside of the budget of a particular cost center or division might be difficult to defend in some jurisdictions,” he said. “The employer would also want to consider available community resources in evaluating such an accommodation request.”
Reader accommodation requests might arise in several contexts, McClory said.
For example, a “reader” might be a device. Available mechanical readers include OrCam Read—a handheld device that scans and reads digital and printed text—and OrCam MyEye, wearable glasses that capture images and text and read it out loud, he said. These products each cost several thousand dollars.
It might be a reasonable accommodation to provide such a device for a lawyer, a mortgage broker or an administrative clerk, McClory said. “The key is whether the device enables the employee to perform the essential functions of the position,” he explained.
On the other hand, McClory said a reading device might not be reasonable in some circumstances. For a teacher, such a device could help with reading textbooks and student work but may not provide the teacher with enough visual capacity to observe what is happening in the classroom. That might be a problem for the educational environment or classroom security, he noted.
If the reader is a person rather than a device, an employer doesn’t have to hire a second employee to perform the duties of the person needing accommodation, McClory said. Other employees whose jobs might overlap could help.
For example, a classroom teacher might have a teaching assistant in the room, and that person may be able to do sufficient reading for the teacher and monitor what is happening in the classroom, McClory said.
Special Equipment
In another example, the EEOC described a scenario in which an assembly line employee with limited vision could perform essential job functions through a combination of low vision capacity, touch and experience. However, the employee couldn’t see a flashing alarm intended to notify workers when assembly line malfunctions present a danger. The agency suggested an audio alarm should be installed if it would be effective and isn’t an undue hardship.
The Occupational Safety and Health Act, in addition to the ADA, might require the installation of an audible alarm, given that Occupational Safety and Health Administration standards require appropriate safety devices, said Larry Lorber, an attorney with Seyfarth in Washington, D.C.
The EEOC guidance’s examples of accommodations are “not so well-known” and should help employers by giving them new ideas, Epstein Gluck said.