The U.S. Equal Employment Opportunity Commission (EEOC) has issued two revised publications addressing veterans with disabilities and the Americans with Disabilities Act (ADA). Both documents are available on the agency’s website at www.eeoc.gov
The revised guides reflect changes to the law stemming from the ADA Amendments Act of 2008, which make it easier for veterans with a wide range of impairments – including those that are often not well understood — such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully. [Prior to the ADA Amendments Act, the ADA’s definition of the term “disability” had been construed narrowly, significantly limiting the law’s protections.]
The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.
The Guide for Wounded Veterans answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that may be necessary to help veterans with disabilities obtain and successfully maintain employment.
Following are edited excerpts from the guide.
Usually, the process of providing a reasonable accommodation will begin with a request from the individual with a disability. A family member, friend, health professional, rehabilitation counselor, or other representative also may request a reasonable accommodation on the veteran’s behalf. The request does not have to mention the ADA or use the term “reasonable accommodation” and simply can be an oral or written statement indicating that the individual needs an adjustment or change in the application process or at work for a reason related to a medical condition. A request for reasonable accommodation is the first step in an informal interactive process between the individual and the employer.
The process will involve determining whether the veteran requesting a reasonable accommodation has a disability (where this is not obvious or already known) and identifying accommodation solutions. Employers should ask the particular veteran requesting accommodation because of his disability what is needed to do the job. There also are extensive public and private resources to help employers identify reasonable accommodations for employees with particular disabilities. For example, the website for the Job Accommodation Network (JAN) provides a practical guide for employers on reasonable accommodation, as well as information about accommodations for specific disabilities, including one on “Accommodating Service Members and Veterans with PTSD.”
During the application process, an employer may explain what the hiring process involves (e.g., an interview, timed written test, or job demonstration) and ask all applicants whether they will need a reasonable accommodation to participate in any part of the process. In addition, if an employer reasonably believes that a veteran with an obvious service-connected disability (e.g., a veteran who is blind or missing a limb) who is applying for a particular job will need a reasonable accommodation to do that job, the employer may ask whether an accommodation is needed and, if so, what type. Once a veteran with a disability has started working, an employer may ask whether an accommodation is needed when it reasonably appears that the person is experiencing workplace problems because of a medical condition.
Because many veterans may not view their service-related injuries as disabilities, they may not ask, or know that they are entitled to ask, for a reasonable accommodation. As a result, it may be critical for the employer to initiate a conversation with a veteran who is experiencing problems to determine an appropriate accommodation. Working together, the employer and veteran should identify what the veteran cannot do and then discuss ways to address any identified performance issue(s).
USERRA prohibits employers from discriminating against employees or applicants for employment on the basis of their military status or military obligations. It also protects the reemployment rights of individuals who leave their civilian jobs (whether voluntarily or involuntarily) to serve in the uniformed services, including the U.S. Reserve forces and state, District of Columbia, and territory (e.g., Guam) National Guards.
Both USERRA and the ADA require employers to make certain adjustments for veterans with disabilities called “reasonable accommodations.” However, 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. This could include providing training or retraining for the position. USERRA also applies to all employers, regardless of size.