The EEOC recently issued a revised publication on the employment of veterans with disabilities. According to the EEOC, the publication reflects changes in the law made by the ADA Amendments Act of 2008 (ADAAA), which made it easier for persons, including veterans, to establish they meet the definition of “disability.” The wide range of impairments covered by the ADAAA include those that are often not well understood, including post-traumatic stress disorder (PTSD), major depressive disorder, and traumatic brain injuries, as well as deafness, blindness, partial or missing limbs, and mobility impairments. This is an issue that will become of increasing relevance as large numbers of veterans return from Iraq and Afghanistan.
Employers should be aware that the ADAAA and the Uniformed Services Employment Reemployment Rights Act (USERRA) protect disabled veterans from discrimination in different ways. USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment to become qualified for a job, whether or not the veteran has a service-connected disability, often through training or retraining. Veterans may have up to two years from the date of completion of service to return to their jobs or apply for reemployment under USERRA. USERRA also applies to all employers, regardless of size, whereas the ADA applies to employers with 15 or more employees. Employers may be required to accommodate a disabled veteran under USERRA where they would not otherwise be required under the ADAAA.
The link to the updated guide on employment of disabled veterans is: http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm
Highlighting some of the guidance provided by the EEOC:
- Employers may not make assumptions about the veteran’s ability to do the job based on the fact that the veteran has a disability rating from the U.S. Department of Veterans Affairs (VA).
- Employers may, for affirmative action purposes (in accordance with rules regarding applicant self-identification for federal contractors and subcontractors), ask applicants to voluntarily identify as a disabled veteran prior to making an offer. This is an exception to the ordinary rule prohibiting employers from asking for medical information prior to making an offer.
- Employers may also ask for suitable candidates from organizations that help veterans or veterans with disabilities find employment. Federal contractors and subcontractors are required to take affirmative action to employ and advance qualified disabled veterans.
- The ADAAA does not prohibit employers from giving special preference to veterans with disabilities, but employers may not discriminate against individuals with disabilities, including disabled veterans.
- Employers should keep in mind that some veterans with service-related disabilities may require reasonable accommodations during the application process.