EEOC Informal Discussion Letter

EEOC Office of Legal Counsel staff members wrote the following letter to respond to a request for public comment from a federal agency or department. This letter is an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Qualification Standards; Federal Vision Standards Applicable to Drivers of Commercial Motor Vehicles

January 13, 2014

Docket Management Facility
U.S. Department of Transportation
1200 New Jersey Avenue, S.E.
West Building, Ground Floor, Room W12-140
Washington, D.C. 20590-0001

Re: Docket Number FMCSA-2013-0097, Federal Motor Carrier Safety Administration (FMCSA), Proposed Changes to the Vision Exemption Program

To Whom It May Concern:

On behalf of the U.S. Equal Employment Opportunity Commission (EEOC), I am submitting the following comments concerning the FMCSA's proposed changes to the eligibility requirements for its Vision Exemption Program. These changes would make it easier for certain individuals with visual deficiencies to operate commercial motor vehicles in interstate commerce without having to satisfy all of the prescribed vision standards, while still ensuring a level of safety that is equivalent to, or greater than, the level of safety under the existing criteria.

The EEOC's Interest in the FMCSA's Proposed Changes

The EEOC enforces Title I of the Americans with Disabilities Act, as amended, 42 U.S.C. §§ 12111-12117. Title I prohibits covered entities, who include private and state and local government employers with 15 or more employees, from discriminating against qualified individuals on the basis of disability in all terms, conditions, and privileges of employment. 42 U.S.C. § 12112. The ADA includes a provision that prohibits covered entities from using qualification standards, such as vision requirements, that screen out a person because of a disability unless they are job-related and consistent with business necessity. 42 U.S.C. § 12112(b)(6); see also § 12113(a). Where a covered entity wishes to exclude an individual with a disability from a job for safety reasons, it must show that the individual poses a "direct threat" (i.e., a significant risk of substantial harm) to self or others. 42 U.S.C. § 12113(b); 29 C.F.R. §1630.2(r); 29 C.F.R. Part 1630 App. §1630.15(b) and (c). Finally, an employer may assert as a defense to a claim of discrimination under the ADA that a qualification standard that screens out an individual because of a disability is required or necessitated by another federal law or regulation. 29 C.F.R. § 1630.15(e).

Unless the "other federal laws" defense applies, the ADA requires employers to make an individualized determination about whether a specific individual is qualified for a job, including whether an individual can safely perform the job's essential functions (i.e., the fundamental duties rather than the marginal ones). An individualized assessment discourages reliance on myths, fears, and stereotypes in determining whether individuals with disabilities are qualified.
Proposed Changes to Criterion for Length of Driving Experience with a Stable Vision Condition

Currently, an individual must have three years of intrastate commercial motor vehicle driving experience with the visual deficiency immediately preceding the date of the application. The Agency seeks comments on whether (1) this requirement should be eliminated or (2) the period of intrastate commercial driving experience should be reduced from three years to one year. If the FMCSA eliminates the driving experience requirement, it would ask that an examination by an ophthalmologist or optometrist be reported within the last three months from the date of the application to avoid the risk that a person's visual impairment had recently deteriorated. As the proposed rulemaking notes, the proposal to adopt one of these two options stems from a review of the 2006 Medical Exemption Program Study by Cambridge Systematics, Inc., which found that (1) the collision rates of visually impaired drivers in the Vision Program were not higher than non-impaired drivers, (2) individuals developed compensatory viewing behavior in order to mitigate visual loss, and (3) monocular commercial drivers did not have significant differences in the performance of tasks involving safe driving.

The FMCSA notes that elimination of the intrastate commercial motor vehicle driving experience requirement would be consistent with the principles of the Agency's Diabetes Exemption Program. It also would permit individuals who may be able to drive commercial motor vehicles safely to qualify for an exemption, whereas the one-year option could exclude such drivers if they happen to be in a state that does not permit intrastate driving with a visual deficiency.

The EEOC believes that both of these options are better than the current three-year driving requirement because they reflect objective data on the safety of commercial drivers with visual impairments, consistent with the ADA. Furthermore, the results of the 2006 Study support these options, consistent with the ADA's requirement that employers assess health and safety risks based on an individualized determination that reflects objective medical and other relevant data. We recommend that the FMCSA, in choosing between these options, determine whether the 2006 Study offers empirical support for a need to require one-year of intrastate commercial motor vehicle driving experience, or whether it reveals that such a requirement is based more on generalized concerns rather than objective evidence of higher risks for commercial drivers with visual impairments.

The Otherwise Qualified Physical Qualification Determination

The FMCSA also proposes to change the current signed driver's statement acknowledging that the driver is otherwise qualified to operate a commercial motor vehicle in interstate commerce. Rather than rely on a driver's statement, the Agency proposes that the driver undergo a medical examination and receive a Medical Examiner's Certificate that declares the driver is physically qualified with the Federal Vision Exemption. This change would be consistent with the FMCSA Diabetes Exemption Program. Also, as the Agency notes, this change promotes efficiency by avoiding having drivers go through the process of qualifying for the Vision Exemption only to be excluded by a medical examiner for other reasons. Instead, a medical examiner may grant a certificate (i.e., the examiner certifies that the individual is otherwise qualified) but note that the certificate is valid only if the driver obtains a Federal Vision Exemption.

Conclusion

EEOC believes that the changes the FMCSA is proposing are consistent with the ADA's goal that a person's disability not be assumed to be disqualifying. As such, the proposed changes will increase employment opportunities for individuals with visual disabilities who are capable of safely operating commercial motor vehicles in interstate commerce.

We appreciate the opportunity to make these comments and hope they are helpful.

Sincerely,

/s/

Peggy R. Mastroianni
Legal Counsel

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