Visually impaired need safety assesments

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).