EEOC issues new guidance concerning employment of veterans with disabilities

By Diane M. Pietraszewski

The Equal Employment Opportunity Commission (EEOC) recently issued two pieces of revised guidance focusing on the employment rights of disabled veterans under the Americans with Disabilities Act (ADA). One of the documents, titled “Veterans and the Americans with Disabilities Act: A Guide for Employers,” is directed at employers. The other document ― “Understanding Your Employment Rights Under the Americans with Disabilities Act: A Guide for Wounded Veterans” ― is designed to assist veterans.

The guidance reflects changes to the law as a result of the ADA Amendments Act of 2008 (ADAAA), which makes it more likely than not that certain service-connected disabilities ― such as deafness, blindness, missing limbs, major depressive disorder, and posttraumatic stress disorder ― may be considered disabilities under the ADA.

Not surprisingly, the issue has garnered much attention recently as many veterans have been returning from service and looking to reenter the workforce. In fact, the guidance was published after a public meeting conducted by the EEOC in November 2011 titled “Overcoming Barriers to the Employment of Veterans with Disabilities.” During that meeting, a panel of experts discussed the unique obstacles faced by veterans with disabilities looking for work.

Guidance for employers

The guidance for employers outlines the legal and practical issues associated with disability-based discrimination against wounded veterans. In summary, the guidance includes the following provisions.

It provides a general overview of protections under the ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA), including the standard for determining which service-connected disabilities constitute disabilities under the ADA.
It notes that employers may ask applicants to voluntarily self- identify as a “disabled veteran” when they are (1) “undertaking affirmative action because of a federal, state, or local law (including a veterans’ preference law) that requires affirmative action for individuals with disabilities” or (2) “voluntarily using the information to benefit individuals with disabilities, including veterans with disabilities.”

The guidance explains the steps you should follow when asking applicants to self-identify as a “disabled veteran” for affirmative action purposes. Specifically, the guidance urges an employer to provide clear and conspicuous notification on any written questionnaire or to otherwise clearly state that (1) “the information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts” and (2) “the specific information is being requested on a voluntary basis, . . . will be kept confidential in accordance with the ADA, and . . . will be used only in accordance with the ADA.” Additionally, the notice must state that refusal to provide the requested information will not subject the applicant to any adverse treatment.

It discusses preferential treatment that may be given to veterans with disabilities by public and private employers. Specifically, federal agencies may ― and at times, must ― give preference to veterans (with and without disabilities) in making hiring decisions. Additionally, federal law requires that businesses with federal contracts of $25,000 or more take affirmative action to employ and advance qualified disabled veterans. Further, the guidance states that private employers may (but aren’t required to) give preferential treatment to veterans with disabilities.

The guidance also suggests steps an employer may take to recruit and hire veterans with disabilities, including, but not limited to, (1) “stating on a job advertisement or vacancy announcement that it is an equal opportunity employer and that individuals with disabilities, including ‘disabled veterans’ or veterans with service-connected disabilities, ‘are encouraged to apply,’” (2) “sending vacancy announcements to, and asking for referrals from, government, community, military organizations, and One Stop Career Centers that train and/or support veterans with disabilities,” and (3) “posting advertisements and vacancy announcements in publications for veterans.”

It identifies the types of reasonable accommodations veterans with disabilities may require, discusses when you may ask a veteran with a disability if he requires an accommodation, and describes the process for determining if a veteran with a disability requires an accommodation.

Finally, the guidance notes the differences between the ADA and USERRA, including the fact that USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran in becoming qualified for a job, regardless of whether or not he has a service-connected disability.

Guidance for wounded veterans

The guidance for veterans likewise provides an overview of ADA and USERRA protections, but it also seeks to educate veterans on their general employment rights. For example, the guidance explains when an employer or potential employer may discuss a veteran’s disabilities. Additionally, it describes the types of accommodations veterans may request and the process they should follow to request them. The guidance also includes the various steps a veteran can take if he believes an employer has unlawfully denied him employment or failed to provide him with a reasonable accommodation.

Employers, beware

You are well advised to familiarize yourself with the EEOC’s new guidance and your general employment obligations to returning veterans. As hostilities overseas wind down, you can expect to continue seeing veterans ― including disabled ones ― transitioning from the military to the private sector. In short, employers need to be fully aware of the legal rights that veterans have earned through their military service.

Diane Pietraszewski is an associate of Bond, Schoeneck & King, PLLC, in the Buffalo, New York, office. She can be reached at dpietraszewski@bsk.com or (716) 566-2853.

About New York Employment Law Letter:
Excerpted from New York Employment Law Letter. NEW YORK EMPLOYMENT LAW LETTER does not attempt to offer solutions to individual problems but rather to provide information about current developments in New York employment law. Questions about individual problems should be addressed to the employment law attorney of your choice. Contact New York Employment Law Letter editors (since October 2011) at Bond Schoeneck & King, PLLC.

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