Blindness and Vision Impairments in the Workplace and the ADA INTRODUCTION The Americans with Disabilities Act (ADA), which was amended by the Americans with Disabilities Act Amendments Act of 2008 ("Amendments Act" or "ADAAA"), is a federal law that prohibits discrimination against qualified individuals with disabilities. Individuals with disabilities include those who have impairments that substantially limit a major life activity, have a record (or history) of a substantially limiting impairment, or are regarded as having a disability. Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers. Section 501 of the Rehabilitation Act provides similar protections related to federal employment. In addition, most states have their own laws prohibiting employment discrimination on the basis of disability. Some of these state laws may apply to smaller employers and may provide protections in addition to those available under the ADA. The U.S. Equal Employment Opportunity Commission (EEOC) enforces the employment provisions of the ADA. This document, which is one of a series of question-and-answer documents addressing particular disabilities in the workplace, explains how the ADA applies to job applicants and employees with vision impairments. In particular, this document explains: when an employer may ask an applicant or employee questions about his vision impairment and how it should treat voluntary disclosures; what types of reasonable accommodations employees with visual disabilities may need; how an employer should handle safety concerns about applicants and employees with visual disabilities; and how an employer can ensure that no employee is harassed because of a visual disability or any other disability. GENERAL INFORMATION ABOUT VISION IMPAIRMENTS Estimates vary as to the number of Americans who are blind and visually impaired. One reason for the different estimates is that different terminology is used to assess the number of individuals with some degree of vision problems. According to one estimate, approximately 6.6 million people in the United States are blind or visually impaired. Another estimate concluded that there are 10 million blind or visually impaired people in the U.S. and of these 1.3 million are considered legally blind. The 2011 National Health Interview Survey Preliminary Report estimated that 21.2 million American adults (over 10% of all American adults) reported that they had trouble seeing even when wearing corrective lenses or that they were blind or unable to see. Only 36.8% of non-institutionalized working age adults (21-64) with a significant vision loss are employed. The Centers for Disease Control and Prevention (CDC) define "vision impairment" to mean that a person's eyesight cannot be corrected to a "normal level." Vision impairment may result in a loss of visual acuity, where an individual does not see objects as clearly as the average person, and/or in a loss of visual field, meaning that an individual cannot see as wide an area as the average person without moving the eyes or turning the head. There are varying degrees of vision impairments, and the terms used to describe them are not always consistent. The CDC and the World Health Organization define low vision as a visual acuity between 20/70 and 20/400 with the best possible correction, or a visual field of 20 degrees or less.Blindness is described as a visual acuity worse than 20/400 with the best possible correction, or a visual field of 10 degrees or less. In the United States, the term "legally blind," means a visual acuity of 20/200 or worse with the best possible correction, or a visual field of 20 degrees or less. Although there are varying degrees of vision impairments, the visual problems an individual faces cannot be described simply by the numbers; some people can see better than others with the same visual acuity. There are many possible causes for vision impairment, including damage to the eye and the failure of the brain to interpret messages from the eyes correctly. The most common causes of vision impairment in American adults are: diabetic retinopathy, age-related macular degeneration, cataracts, and glaucoma. Additionally, many individuals have monocular vision - perfect or nearly perfect vision in one eye, but little or no vision in the other. Vision impairment can occur at any time in life, but adults aged 40 and older are at the greatest risk for eye diseases, such as cataract, diabetic retinopathy, glaucoma, and age-related macular degeneration. Persons with vision impairments successfully perform a wide range of jobs and can be dependable workers. Yet, many employers still automatically exclude them from certain positions based on generalizations about vision impairments and false assumptions that it would be too expensive, or perhaps even too dangerous, to employ them. Thus, employers may erroneously assume that any accommodation that would allow a person with a vision impairment to do her job would be too costly. Employers also may have liability concerns related to the fear of accidents and/or injuries. 1. When does someone with a vision impairment have a disability within the meaning of the ADA? As a result of changes made by the ADAAA, people who are blind should easily be found to have a disability within the meaning of the first part of the ADA's definition of disability because they are substantially limited in the major life activity of seeing. Individuals with a vision impairment other than blindness will meet the first part of the ADA's definition of disability if they can show that they are substantially limited in seeing or another major life activity (e.g., the major bodily function of special sense organs). A determination of disability must ignore the positive effects of any mitigating measure that is used. For example, a mitigating measure may include the use of low vision devices that magnify, enhance, or otherwise augment a visual image. Another type of mitigating measure is the use of learned behavioral modifications (for example, a person with monocular vision may turn his head from side to side to compensate for the lack of peripheral vision). A person with monocular vision, regardless of such compensating behaviors, will be substantially limited in seeing compared to most people in the general population. 2. Is everyone who wears glasses a person with a disability? No, not everyone who wears glasses is a person with a disability under the ADA. Although the ADA generally requires that the positive effects of mitigating measures be ignored in assessing whether someone has a disability, the law requires that one consider the positive effects of the use of ordinary eyeglasses or contact lenses (that is, lenses that are intended to fully correct visual acuity or to eliminate refractive error). If the use of ordinary lenses results in no substantial limitation to a major life activity, then the person's vision impairment does not constitute a disability under the first part of the ADA's definition of disability. Even though individuals who use ordinary eyeglasses or contact lenses that are intended to fully correct their vision will not be covered under the first definition of disability, they are protected from discrimination based on an employer's use of uncorrected vision standards that are not job-related and consistent with business necessity. Individuals with a history of a vision impairment will be covered under the second part of the definition of disability if they have a record of an impairment that substantially limited a major life activity in the past (for example, where surgery corrected a past substantially limiting vision impairment). Finally, an individual is covered under the third ("regarded as") prong of the definition of disability if an employer takes a prohibited action (for example, refuses to hire or terminates the individual) because of a vision impairment or because the employer believes the individual has a vision impairment, other than an impairment that lasts fewer than six months and is minor. OBTAINING, USING, AND DISCLOSING MEDICAL INFORMATION Title I of the ADA limits an employer's ability to ask questions related to blindness and other disabilities and to conduct medical examinations at three stages: pre-offer, post-offer, and during employment. Job Applicants Before an Offer of Employment Is Made 3. May an employer ask a job applicant whether he has or had a vision impairment or about his treatment related to any vision impairment prior to making a job offer? No. An employer may not ask questions about an applicant's medical condition or require an applicant to have a medical examination before it makes a conditional job offer. This means that an employer cannot legally ask an applicant such questions as: whether she has ever had any medical procedures related to her vision (for example, whether the applicant ever had eye surgery); whether she uses any prescription medications, including medications for conditions related to the eye; or whether she has any condition that may have caused a vision impairment (for example, whether the applicant has diabetes). Of course, an employer may ask questions pertaining to the applicant's ability to perform the essential functions of the position, with or without reasonable accommodation, such as: whether the applicant can read labels on packages that need to be stocked whether the applicant can work the night shift whether the applicant can inspect small electronic components to determine if they have been damaged. 4. Does the ADA require an applicant to disclose that she has or had a vision impairment or some other disability before accepting a job offer? No. The ADA does not require applicants to disclose that they have or had a vision impairment or another disability unless they will need a reasonable accommodation for the application process (for example, written application materials to be printed in a larger font). Some individuals with a vision impairment, however, choose to disclose or discuss their condition to dispel myths about vision loss or to ensure that employers do not assume that the impairment means the person is unable to do the job. Sometimes, the decision to disclose depends on whether an individual will need a reasonable accommodation to perform the job (for example, specialized equipment, removal of a marginal function, or another type of job restructuring). A person with a vision impairment, however, may request an accommodation after becoming an employee even if she did not do so when applying for the job or after receiving the job offer. 5. May an employer ask questions about an obvious vision impairment, or follow-up questions if an applicant discloses a non-obvious vision impairment? No. An employer generally may not ask an applicant about obvious impairments. Nor may an employer ask an applicant who has voluntarily disclosed that he has a vision impairment any questions about the nature of the impairment, when it began, or how the individual copes with the impairment. However, if an applicant has an obvious impairment or has voluntarily disclosed the existence of a vision impairment and the employer reasonably believes that he will require an accommodation to perform the job because of the impairment, the employer may ask whether the applicant will need an accommodation and what type. The employer must keep any information an applicant discloses about his medical condition confidential. (See "Keeping Medical Information Confidential.") Example 1: A woman appears with her guide dog for an interview for a job as a school principal. The position requires significant reading. Because her vision impairment is obvious, the employer may ask her if she will need an accommodation to perform functions that involve reading and, if so, what type. After an Offer of Employment Is Made After making a job offer, an employer may ask questions about the applicant's health (including questions about the applicant's disability) and may require a medical examination, as long as all applicants for the same type of job are treated equally (that is, all applicants are asked the same questions and are required to take the same examination). After an employer has obtained basic medical information from all individuals who have received job offers, it may ask specific individuals for more medical information if the request is medically related to the previously obtained medical information. For example, if an employer asks all applicants post-offer about their general physical and mental health, it can ask individuals who disclose a particular illness, disease, or impairment for medical information or require them to have a medical examination related to the condition disclosed. 6. What may an employer do when it learns that an applicant has or had a vision impairment after she has been offered a job but before she starts working? When an applicant discloses after receiving a conditional job offer that she has or had a vision impairment, an employer may ask the applicant additional questions, such as how long she has had the vision impairment; what, if any, vision the applicant has; what specific visual limitations the individual experiences; and what, if any, reasonable accommodations the applicant may need to perform the job. The employer also may send the applicant for a follow-up vision or medical examination or ask her to submit documentation from her doctor answering questions specifically designed to assess her ability to perform the job's functions safely. Permissible follow-up questions at this stage differ from those at the pre-offer stage when an employer only may ask an applicant who voluntarily discloses a disability whether she needs an accommodation to perform the job and what type. An employer may not withdraw an offer from an applicant with a vision impairment if the applicant is able to perform the essential functions of the job, with or without reasonable accommodation, without posing a direct threat (that is, a significant risk of substantial harm) to the health or safety of himself or others that cannot be eliminated or reduced through reasonable accommodation. ("Reasonable accommodation" is discussed in Questions 10 through15. "Direct threat" is discussed in Question 16.) Example 2: A county sheriff with monocular vision applied for a position with the state police as a criminal investigator. He was highly qualified for the job and was conditionally offered a position pending qualification under the state police department's medical criteria for criminal investigators. The doctor who conducted the medical examination of the applicant determined that because of his monocular vision he did not meet the state's safety standards, and the conditional offer of employment was withdrawn. The state police department did not violate the ADA by requiring the medical exam. However, the department must be prepared to show that the applicant was unable to do the essential functions of the job, with or without a reasonable accommodation, or that he would have posed a direct threat to safety that could not be reduced or eliminated by a reasonable accommodation if he had been hired. Employees The ADA strictly limits the circumstances under which an employer may ask questions about an employee's medical condition or require the employee to have a medical examination. Once an employee is on the job, his actual performance is the best measure of ability to do the job. 7. When may an employer ask an employee if a vision impairment, or some other medical condition, may be causing her performance problems? Generally, an employer may ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee's medical condition, has observed performance problems, and reasonably believes that the problems are related to a medical condition. At other times, an employer may ask for medical information when it has observed symptoms, such as difficulties visually focusing, or has received reliable information from someone else (for example, a family member or co-worker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer's existing policies concerning performance. Example 3: A data entry clerk has recently been making numerous errors when entering information into the employer's computer system. For example, he seems to be confusing the numbers 1, 7, and 9. The clerk's supervisor also has begun to see the clerk rubbing his eyes frequently and looking more closely at both his computer screen and printed materials. The employer has a reasonable belief based on objective evidence that the clerk's performance problems are related to a medical condition (i.e., an eye problem) and, therefore, may ask for medical information. Example 4: A receptionist, with a known degenerative eye condition, has not been answering all the calls that come in to the office in her usual friendly manner. The employer may counsel the receptionist about how she answers the phone, but may not ask her questions about her eye condition unless there is evidence that this may be the reason for her changed demeanor. 8. Are there any other instances when an employer may ask an employee with a vision impairment about her condition? Yes. An employer also may ask an employee about a vision impairment when it has a reasonable belief that the employee will be unable to safely perform the essential functions of her job because of the vision impairment. In addition, an employer may ask an employee about her vision impairment to the extent the information is necessary: to support the employee's request for a reasonable accommodation needed because of her vision impairment; to verify the employee's use of sick leave related to her vision impairment if the employer requires all employees to submit a doctor's note to justify their use of sick leave; or to enable the employee to participate in a voluntary wellness program. Example 5: An employer's leave policy requires all employees who are absent because of a medical appointment to submit a note from their doctor verifying the appointment. Jack, an employee, uses sick leave for an ophthalmological examination. In accordance with its policy, the employer can require Jack to submit a doctor's note for his absence; however, it may not require the note to include any information beyond that which is needed to verify that Jack used his sick leave properly (such as, the results of the examination, or a statement about the employee's diagnosis or any treatment). KEEPING MEDICAL INFORMATION CONFIDENTIAL With limited exceptions, an employer must keep confidential any medical information it learns about an applicant or employee. Under the following circumstances, however, an employer may disclose that an employee has a vision impairment: to supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee's work restrictions; to first aid and safety personnel if an employee may need emergency treatment or require some other assistance at work; to individuals investigating compliance with the ADA and similar state and local laws; and where needed for workers' compensation or insurance purposes (for example, to process a claim). 9. May an employer tell employees who ask why their co-worker is allowed to do something that generally is not permitted (such as working at home or working a modified schedule) that she is receiving a reasonable accommodation? No. Telling coworkers that an employee is receiving a reasonable accommodation amounts to a disclosure that the employee has a disability. Rather than disclosing that the employee is receiving a reasonable accommodation, the employer should focus on the importance of maintaining the privacy of all employees and emphasize that its policy is to refrain from discussing the work situation of any employee with co-workers. Employers may be able to avoid many of these kinds of questions by training all employees on the requirements of equal employment laws, including the ADA. Additionally, an employer will benefit from providing information about reasonable accommodation to all of its employees. This can be done in a number of ways, such as through written reasonable accommodation procedures, employee handbooks, staff meetings, and periodic training. This kind of proactive approach may lead to fewer questions from employees who misperceive co-worker accommodations as "special treatment." Example 6: Most of the paralegals in a large firm have outdated computer monitors. A paralegal who is on medication for a disability that causes vision problems requests, and is given, a new monitor with a special program that allows her to 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. ACCOMMODATING EMPLOYEES WITH VISUAL DISABILITIES The ADA requires employers to provide adjustments or modifications - called reasonable accommodations - to enable applicants and employees with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (that is, a significant difficulty or expense). Accommodations vary depending on the needs of the individual with a disability. Not all employees with a visual disability will need an accommodation or require the same accommodations. 10. What types of reasonable accommodations may employees with visual disabilities need? Some employees may need one or more of the following accommodations: assistive technology, including: a closed circuit television system (CCTV) for reading printed materials an external computer screen magnifier digital recorders software that will read information on the computer screen an optical scanner that can create documents in electronic form from printed ones a refreshable Braille display a Braille embosser written materials in an accessible format, such as in large print, Braille, in a recorded format, or on a computer disk modification of employer policies to allow use of a guide dog in the workplace modification of an employment test a person to read printed materials a driver or payment for the cost of transportation to enable performance of essential functions an accessible website permission to work at home modified training or training in the use of assistive technology. Example 7: An employer has decided to upgrade its computer programs. In order to teach its staff about the new systems, it has set up five "hands-on" training classes in which groups of employees will be shown how to execute various functions using the new software and then will have an opportunity to complete a series of exercises using those functions with guidance from the instructor. Most of the demonstrations and exercises will involve use of a computer mouse to execute functions. A blind employee who uses a screen reading program is unable to use a computer mouse effectively and will require individualized instruction that will enable her to learn how to perform necessary functions using keyboard commands. The employer must grant this accommodation as long as it would not result in undue hardship. a modified work schedule Example 8: A blind employee does not have easy access to public transportation and must rely on paratransit service to get to work most mornings. He asks that, on days when his ride to work arrives after the employer's usual 8:30 a.m. start time, he be allowed to work later in the evening to make up the time rather than being required to take annual leave or face discipline for tardiness. The employer must grant this accommodation as long as it would not result in undue hardship. time off, in the form of accrued paid leave or unpaid leave if paid leave has been exhausted or is unavailable Example 9: An employer provides a total of three weeks of leave (sick and annual leave) per employee each year. An employee with a degenerative eye condition has, over time, lost most of her vision and has decided to start using a guide dog. Training the guide dog will require her to attend a six-week residential program. Although the six weeks of leave that are needed exceed the amount of leave provided to each employee, the employer must provide additional unpaid leave as a reasonable accommodation as long as it would not result in undue hardship. The same rule would apply if the employee needs time off for treatment related to a visual disability. reassignment to a vacant position Example 10: A city police officer is shot and blinded during an attempt to stop a robbery. He no longer is able to perform his job as a police officer, but he is qualified for a vacant 9-1-1 emergency operator position. The job pays less than a police officer, but it is the closest vacant position in terms of pay, status, and benefits for which the officer is qualified. The city must reassign the officer to the 9-1-1 emergency operator position as a reasonable accommodation as long as it would not result in undue hardship. Although these are some examples of the types of accommodations commonly requested by employees with visual disabilities, other employees may need different changes or adjustments. Employers should ask the particular employee requesting an accommodation what he needs that will help him do his job. There also are extensive public and private resources to help employers identify reasonable accommodations. For example, the website for the Job Accommodation Network (JAN) (http://askjan.org) provides information about many types of accommodations for employees with visual disabilities. 11. How does an employee with a visual disability request a reasonable accommodation? There are no "magic words" that a person has to use when requesting a reasonable accommodation. A person simply has to tell the employer that she needs an adjustment or change at work because of her visual impairment. A request for reasonable accommodation also can come from a family member, friend, health professional, or other representative on behalf of a person with a visual disability. If an employer requires more information about the disability and why an accommodation is needed, it should engage in an "interactive process" -- a dialogue with the employee -- to obtain information that will help the employer in handling the request. Example 11: A blind man calls regarding a job opening he heard advertised on the radio. The employer explains that part of the application process is a written exam and part is an in-person interview. The man says that he will need some help with the exam because of his impairment. This is a request for a reasonable accommodation. Example 12: While an employee has been out on extended medical leave for her diabetes, her visual disability has gradually gotten worse. When she returns to work, she presents a note from her doctor stating that she will need "some assistance" in order to perform the essential functions of the job. This is a request for a reasonable accommodation. 12. May an employer request documentation when an employee who has a visual disability requests a reasonable accommodation? Sometimes. When a person's vision impairment is not obvious, the employer may ask the person to provide reasonable documentation about how the condition limits major life activities (that is, whether the person has a disability) and why a reasonable accommodation is needed. An employer, however, is entitled only to documentation sufficient to establish that the employee has a visual disability and to explain why an accommodation is needed. A request for an employee's entire medical record, for example, would be inappropriate, as it likely would include information about conditions other than the employee's visual disability. Example 13: A customer service representative with a non-obvious vision impairment requests a larger computer monitor. The employee's ophthalmologist provides a letter describing the employee's impairment and its limitations. The letter explains that the employee cannot drive and can read standard-sized print but only very slowly, for short periods of time, and with considerable effort. The condition is not expected to deteriorate further, but no improvement is expected either. The ophthalmologist concludes that providing some kind of magnification device for the computer or a larger monitor would be helpful. The employee has provided sufficient documentation that his eye condition is an ADA disability and that he needs a reasonable accommodation. The employer may not request further documentation, such as the results of all the tests conducted to diagnose the condition. 13. Does an employer have to grant every request for a reasonable accommodation? No. An employer does not have to provide an accommodation if doing so would be an undue hardship. Undue hardship means that providing the reasonable accommodation will result in significant difficulty or expense. An employer also does not have to eliminate an essential function of a job as a reasonable accommodation, tolerate performance that does not meet its standards, or excuse violations of conduct rules that are job-related and consistent with business necessity and that the employer applies consistently to all employees (such as rules prohibiting violence, threatening behavior, theft, or destruction of property). Nor do employers have to provide employees with personal use items, such as eyeglasses or other devices that are used both on and off the job. If more than one accommodation would be effective, the employee's preference should be given primary consideration, although the employer is not required to provide the employee's first choice of reasonable accommodation. If a requested accommodation is too difficult or expensive, an employer may choose to provide an easier or less costly accommodation as long as it is effective in meeting the employee's needs. Example 14: An editor for a publishing company has a visual disability and needs magnification to read text. She asks the company to hire a full-time reader for her. The employer is able to purchase a computer program that will magnify text on the screen and speak the words to her. If this is cheaper and easier for the employer to do, and allows the editor to do her work just as effectively, then it may be provided as a reasonable accommodation. Example 15: A blind job applicant requests a reader for an employment test. The employer requires the applicant to take the test in Braille instead, although he has told the employer he is not proficient in Braille. In this situation, because providing the test in Braille is not an effective accommodation, the employer must provide a reader unless to do so would be an undue hardship. 14. May an employer be required to provide more than one accommodation for the same employee with a visual disability? Yes. The duty to provide a reasonable accommodation is an ongoing one. Although some employees with visual disabilities may require only one reasonable accommodation, others may need more than one. An employer must consider each request for a reasonable accommodation and determine whether it would be effective and whether providing it would pose an undue hardship. Example 16: An employee who is blind has assistive technology for his computer that works with the employer's network and enables him to send and receive email messages easily. When the employer upgrades computer equipment for all employees, it must provide new or updated assistive technology so that the blind employee will be integrated into the new networks, absent undue hardship. Example 17: An employee with retinitis pigmentosa, a degenerative eye condition that results, over time, in total or near total blindness, has been able to read printed materials related to her job with a magnifier and some adjustments to the lighting in her work area. When she is no longer able to do this, she asks for a reader. Absent undue hardship, the employer must provide a reader or some other effective accommodation. 15. What kinds of reasonable accommodations are related to the benefits and privileges of employment? Reasonable accommodations related to the benefits and privileges of employment include accommodations that are necessary to provide individuals with disabilities access to facilities or portions of facilities to which all employees are granted access (for example, employee break rooms and cafeterias), access to information communicated in the workplace, and the opportunity to participate in employer-sponsored training and social events. Example 18: An employer offers employees opportunities to accept six-month assignments to jobs outside of their work group or department. The temporary assignments are considered valuable training opportunities that can lead to employee advancement. An employee with a visual disability, who has worked successfully in her current position with only slight modifications to her computer equipment, requests a temporary assignment to a position that will involve considerably more reading and asks that a part-time reader be provided. The employer may not deny the temporary assignment because of the need to make a reasonable accommodation, but must provide a reader or some other effective accommodation if this would not result in undue hardship. Example 19: An employer typically posts job openings on bulletin boards. An employee with a visual disability requests that electronic notices of all job postings be emailed to him so that he will have timely notice of the postings. Unless this would result in undue hardship, the employer must provide this accommodation. Example 20: An employer holds a retirement party for a long-time employee. The event includes a dinner and various presentations by the employee's co-workers and company management. A formal program is printed for the event, and an employee with a visual disability requests a copy of the program in large print. The employer must provide this accommodation, absent undue hardship. An employer will not be excused from providing an employee with a visual disability with a necessary accommodation because the employer has contracted with another entity to conduct the event. Example 21: An employer offers its employees a training course on organization and time management provided by a local company with which the employer has contracted. An employee who is blind wants to take the course and asks that materials be made available in Braille. The employer claims that the company conducting the training is responsible for providing what the blind employee needs, but the company responds that the responsibility is the employer's. Even if the company conducting the training has an obligation, under Title III of the ADA, to provide "auxiliary aids and services," which would include providing written materials in Braille, this fact does not alter the employer's obligation to provide the employee with a reasonable accommodation for the training. CONCERNS ABOUT SAFETY When it comes to safety concerns, an employer should be careful not to act on the basis of myths, fears, or stereotypes about vision impairments. Instead, the employer should evaluate each individual on her skills, knowledge, experience, and how the visual disability affects her. 16. When may an employer refuse to hire, terminate, or temporarily restrict the duties of a person who has or had a vision impairment because of safety concerns? An employer only may exclude an individual with a vision impairment from a job for safety reasons when the individual poses a direct threat. A "direct threat" is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation. This determination must be based on objective, factual evidence, including the best recent medical evidence. In making a direct threat assessment, the employer must evaluate the individual's present ability to safely perform the job. The employer also must consider: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. The harm must be serious and likely to occur, not remote or speculative. Finally, the employer must determine whether any reasonable accommodation would reduce or eliminate the risk. Example 22: An assembly line worker has lost much of his vision, but because he has held his job for more than ten years, he can effectively perform the job's functions using a combination of his remaining limited vision and touch. The employer's normal practice is to flash an alarm light when there is an assembly line malfunction that could cause injuries to workers. Rather than discharging the employee because he no longer is able to see the flashing light and may therefore be in harm's way, the employer should consider installing an audio alarm to accommodate him. Example 23: A blind sous-chef who began working as a line cook and has worked in restaurants for 15 years in positions of increasing levels of responsibility applies for a job at a newly opened restaurant. Although it initially takes him slightly more time than other workers to learn the layout of the kitchen, once he does so he is able to move about easily and safely. The combination of his experience, his use of touch to perform some tasks that other workers perform visually, and a few simple accommodations, such as Braille labels on oven controls, enables him to use all kitchen equipment and to supervise kitchen staff. The restaurant may not refuse to hire this chef on the ground that he cannot work safely in a busy kitchen. Example 24: A line cook develops a severe visual disability and has difficulty adjusting to his vision loss. As a result, he has problems navigating in the kitchen and barely avoids bumping into three different co-workers, two of whom were carrying trays of food just removed from the oven and one who was carrying a pot of boiling water. He also was warned twice about placing his hands too close to open flames and fryers filled with hot oil. Reasonable accommodations have not eliminated or reduced these problems. This individual poses a direct threat to his own health and safety and to the health and safety of others, and therefore the employer may terminate his employment as a line cook. 17. What should an employer do when another federal law prohibits it from hiring anyone with a vision impairment? If a federal law prohibits an employer from hiring a person with a vision impairment, the employer would not be liable under the ADA. The employer should be certain, however, that compliance with the law actually is required, not voluntary. The employer also should be sure that the law does not contain any exceptions or waivers. Example 25: A courier service that uses vans and small trucks weighing less than 10,000 pounds may not use the DOT standards applicable to commercial motor vehicles weighing more than 10,000 pounds to automatically exclude applicants with monocular vision from driver jobs. The employer may exclude a particular applicant with monocular vision only if it can demonstrate that she would pose a direct threat. (See Question 16, above.) HARASSMENT The ADA prohibits harassment, or offensive conduct, based on disability just as other federal laws prohibit harassment based on race, sex, color, national origin, religion, age, and genetic information. Offensive conduct may include, but is not limited to, offensive jokes, slur, epithets or name calling, physical assaults or threats, intimidation, ridicule or mockery, insults or put-downs, offensive objects or pictures, and interference with work performance. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). Example 26: A grocery store cashier with a visual disability is frequently taunted by his co-workers. They regularly ask him how many fingers they are holding up and take away his white cane and tell him to go find it. The cashier complains to his supervisor in accordance with his employer's anti-harassment policy. The employer must promptly investigate and address the harassing behavior. 18. What should employers do to prevent and correct harassment? Employers should make clear that they will not tolerate harassment based on disability or on any other basis. This can be done in a number of ways, such as through a written policy, employee handbooks, staff meetings, and periodic training. The employer should emphasize that harassment is prohibited and that employees should promptly report such conduct to a manager. Finally, the employer should immediately conduct a thorough investigation of any report of harassment and take swift and appropriate corrective action. For more information on the standards governing harassment under all of the EEO laws, see http://www.eeoc.gov/policy/docs/harassment.html. RETALIATION The ADA prohibits retaliation by an employer against someone who opposes discriminatory employment practices, files a charge of employment discrimination, or testifies or participates in any way in an investigation, proceeding, or litigation related to a charge of employment discrimination. It is also unlawful for an employer to retaliate against someone for requesting a reasonable accommodation. Persons who believe that they have been retaliated against may file a charge of retaliation as described below. HOW TO FILE A CHARGE OF EMPLOYMENT DISCRIMINATION Against Private Employers and State/Local Governments Any person who believes that his or her employment rights have been violated on the basis of disability and wants to make a claim against an employer must file a charge of discrimination with the EEOC. A third party may also file a charge on behalf of another person who believes he or she experienced discrimination. For example, a family member, social worker, or other representative can file a charge on behalf of someone with a vision impairment. The charge must be filed by mail or in person with the local EEOC office within 180 days from the date of the alleged violation. The 180-day filing deadline is extended to 300 days if a state or local anti-discrimination agency has the authority to grant or seek relief as to the challenged unlawful employment practice. The EEOC will send the parties a copy of the charge and may ask for responses and supporting information. Before formal investigation, the EEOC may select the charge for EEOC's mediation program. Both parties have to agree to mediation, which may prevent a time consuming investigation of the charge. Participation in mediation is free, voluntary, and confidential. If the mediation is unsuccessful, the EEOC investigates the charge to determine if there is "reasonable cause" to believe discrimination has occurred. If reasonable cause is found, the EEOC will then try to resolve the charge with the employer. In some cases, where the charge cannot be resolved, the EEOC will file a court action. If the EEOC finds no discrimination, or if an attempt to resolve the charge fails and the EEOC decides not to file suit, it will issue a notice of a "right to sue," which gives the charging party 90 days to file a court action. A charging party can also request a notice of a "right to sue" from the EEOC 180 days after the charge was first filed with the Commission, and may then bring suit within 90 days after receiving the notice. For a detailed description of the process, you can visit our website at http://www.eeoc.gov/employees/charge.cfm. Against the Federal Government If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, you have a right to file a complaint. Each agency is required to post information about how to contact the agency's EEO Office. You can contact an EEO Counselor by calling the office responsible for the agency's EEO complaints program. Generally, you must contact the EEO Counselor within 45 days from the day the discrimination occurred. In most cases the EEO Counselor will give you the choice of participating either in EEO counseling or in an alternative dispute resolution (ADR) program, such as a mediation program. If you do not settle the dispute during counseling or though ADR, you can file a formal discrimination complaint against the agency with the agency's EEO Office. You must file within 15 days from the day you receive notice from your EEO Counselor about how to file. Once you have filed a formal complaint, the agency will review the complaint and decide whether or not the case should be dismissed for a procedural reason (for example, your claim was filed too late). If the agency doesn't dismiss the complaint, it will conduct an investigation. The agency has 180 days from the day you filed your complaint to finish the investigation. When the investigation is finished, the agency will issue a notice giving you two choices: either request a hearing before an EEOC Administrative Judge or ask the agency to issue a decision as to whether the discrimination occurred. For a detailed description of the process, you can visit our website at http://www.eeoc.gov/eeoc/publications/fs-fed.cfm.  See 42 U.S.C. §12102(2); 29 C.F.R. §1630.2(g).  For example, disability laws in California, Pennsylvania, New Jersey, and New York apply to employers with fewer than 15 employees.  See "The Questions and Answers Series" under "Available Resources" on EEOC's website at www.eeoc.gov/laws/types/disability.cfm.  2011 Disability Status Reports, based on information from the American Community Survey, www.disabilitystatistics.org. Based on a review of the ACS data, approximately 2.2% of the non-institutionalized population of the U.S. has a visual disability, meaning they are either blind or have difficulty seeing even with glasses.  Job Accommodation Network, citing American Foundation for the Blind statistics from 2008, http://askjan.org/media/sight.html.  American Foundation for the Blind, www.afb.org/section.aspx?FolderID=2&SectionID=15.  National Federation of the Blind, https://nfb.org/factsaboutblindnessintheus.  CDC, National Center on Birth Defects and Developmental Disabilities (NCBDDD), http://www.cdc.gov/ncbddd/dd/ddvi.htm.  A person with a visual acuity of 20/70 can see at 20 feet what a person with normal sight can see at 70 feet. A person with a visual acuity of 20/400 can see at 20 feet what a person with normal vision can see at 400 feet. The visual fields normally extend outward over an angle of about 90 degrees on either side of the midline of the face. A normal visual field is about 160-170 degrees horizontally. Id. Id.  Diabetic retinopathy is the term used to describe changes in the blood vessels of the retina due to diabetes, which can cause vision impairments and blindness. Not all people with diabetes develop this condition. See Major Causes of Blindness (National Federation of the Blind 1995), at http://www.blind.net(follow "General Information About Blindness" hyperlink; then follow "Major Causes of Blindness" hyperlink).  Macular degeneration refers to the breakdown of the macula, the part of the retina which forms the sharpest view of an object. The disorder, which occurs with age, varies in the speed with which it affects people and often can be corrected with magnifying lenses. Id.  Cataracts are opacities and clouding of the lens of the eye that block the passage of light. They can be present at birth but tend to increase with age. They often can be surgically corrected. Id.  Glaucoma is a condition characterized by a build-up of the clear fluid in the forward part of the eye that does not drain properly and causes increased pressure inside the eye. If left uncontrolled, the condition can cause damage to the eye that results in blurred vision, a narrow field of vision, and eventually total blindness. Glaucoma can often be successfully controlled with medication, though surgery is sometimes necessary. Glaucoma is responsible for one of every seven or eight cases of blindness. Id.  Vision Health Initiative, Centers for Disease Control and Prevention, http://www.cdc.gov/visionhealth/basic_information/lifespan.htm (last updated Sept. 28, 2009).  29 C.F.R. §1630.2(j)(3)(iii).  See 29 C.F.R. §1630.2(i)(1)(ii).  29 C.F.R. §1630.2(j)(5)(i).  29 C.F.R. §1630.2(j)(5)(iv).  29 C.F.R. §1630.2(j)(1)(vi).  29 C.F.R. §1630.2(l).  Federal contractors are required under 41 C.F.R. § 60-741.42, a regulation issued by the Office of Federal Contract Compliance Programs (OFCCP), to invite applicants to voluntarily self-identify as persons with disabilities for affirmative action purposes. The ADA prohibition on asking applicants about medical conditions at the pre-offer stage does not prevent federal contractors from complying with the OFCCP's regulation. See Letter from Peggy R. Mastroianni, EEOC Legal Counsel to Patricia A. Shiu, Director of OFCCP, www.dol.gov/ofccp/regs/compliance/section503.htm#bottom.  An employer also may ask an employee about his vision impairment or send the employee for a medical examination when it reasonably believes the employee may pose a direct threat because of his impairment. See "Concerns About Safety."  An employer also may ask an employee for periodic updates on her condition if the employee has taken leave and has not provided an exact or fairly specific date of return or has requested leave in addition to that already granted. Of course, an employer may call employees on extended leave to check on their progress or to express concern for their health without violating the ADA.  The ADA allows employers to conduct voluntary medical examinations and activities, including obtaining voluntary medical histories, which are part of an employee wellness program (such as a smoking cessation program), as long as any medical records (including, for example, the results of any diagnostic tests) acquired as part of the program are kept confidential. See Q&A 22 in EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the ADA, http://www.eeoc.gov/policy/docs/guidance-inquiries.html.  See EEOC fact sheet on Telework as a Reasonable Accommodation at www.eeoc.gov/facts/telework.html.  See the Job Accommodation Network's Searchable Online Accommodation Resource (SOAR), http://www.jan.wvu.edu/soar/vision.html.  Requests for documentation to support a request for accommodation may violate Title II of the Genetic Information Nondiscrimination Act (GINA) where they are likely to result in the acquisition of genetic information, including family medical history. 29 C.F.R. §1635.8(a). For this reason, employers may want to include a warning in the request for documentation that the employee or the employee's doctor should not provide genetic information. Id. at 1635.8(b)(1)(i)(B).  In an effort to eliminate discrimination against individuals with disabilities, Title III of the Americans with Disability Act requires businesses and non-profit organizations that are public accommodations to comply with basic nondiscrimination and building accessibility requirements, provide reasonable modifications to policies and practices, and supply auxiliary aids (for example, assistive listening devices, note takers, written materials, taped texts, and qualified readers) to ensure effective communication with persons with disabilities. For more information on the requirements of Title III of the ADA, visit the website for the U.S. Department of Justice, Civil Rights Division, Disability Rights Section available at http://www.justice.gov/crt/about/drs/.  An employer should include, as part of any contract with an entity that conducts training, provisions that allocate responsibility for providing reasonable accommodations. This can help to avoid conflicts or confusion that could arise and result in an employee being denied a training opportunity. An employer should also remember, however, that it remains responsible for providing a reasonable accommodation that an employee needs to take advantage of a training opportunity, regardless of how that responsibility has been allocated in the contract.  29 C.F.R. § 1630.2(r).  Id.  Id. 33 Many states and localities have disability anti-discrimination laws and agencies responsible for enforcing those laws. The EEOC refers to these agencies as "Fair Employment Practices Agencies (FEPAs)." Individuals may file a charge with either the EEOC or a FEPA. If a charge filed with a FEPA is also covered under the ADA, the FEPA will "dual file" the charge with the EEOC but usually will retain the charge for investigation. If an ADA charge filed with the EEOC is also covered by a state or local disability discrimination law, the EEOC will "dual file" the charge with the FEPA but usually will retain the charge for investigation.