EEOC Issues Guidance on Employment of Veterans with Service-Related Disabilities

March 17, 2008

On February 29, 2008, the Equal Employment Opportunity Commission (EEOC) issued two question-and-answer guides – one for employers and one for veterans – on workplace issues affecting veterans with service-connected disabilities.  The guides do not create new law, but, in light of the fact that more than 30,000 service veterans have been wounded in action in Iraq and Afghanistan since October 2001, the guides serve as an important and timely reminder to employers of their obligations with respect to the employment of disabled service members and to veterans of their rights under the law.

The focus of the employer’s guidance is on two major federal laws that protect veterans with disabilities – the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Americans with Disabilities Act (ADA).  USERRA, which is enforced by the U.S. Department of Labor, 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 and benefits rights of those who – voluntarily or involuntarily – leave their civilian jobs to serve in the uniformed services.  The ADA, which is enforced by the EEOC, prohibits private and public employers from discriminating against individuals on the basis of disability.  USERRA applies to all employers, regardless of size, whereas the ADA applies only to employers with 15 or more employees.

Notably, the EEOC guidance highlights some important differences between USERRA and the ADA.  For example, an employer may be obligated to accommodate a disabled veteran under USERRA, even though the veteran’s disability may not be covered under the ADA.  The ADA defines an “individual with a disability” as a person who (1) has a physical or mental impairment that substantially limits one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as having such an impairment. In contrast, a veteran may be considered disabled for purposes of USERRA if he or she is receiving military disability benefits.

Moreover, while both USERRA and the ADA include reasonable accommodation obligations, they differ in scope. Under the ADA, an employer is required to make “reasonable” accommodations for an applicant’s or employee’s disability, if that person is otherwise qualified for the job, (meaning that the person can perform the essential functions of the job), and unless doing so would cause the employer “undue hardship.”  Examples of reasonable accommodations under the ADA include job-restructuring and reassignment of an employee with a disability to a vacant position.  Undue hardship is broadly defined as “significant difficulty or expense.”

USERRA, however, requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment in becoming qualified for a job.  As the EEOC explains, under USERRA, the employer “must help the veteran become qualified to perform the duties of the position whether or not the veteran has a service-connected disability requiring reasonable accommodation.  This could include providing training or retraining for the position.”

The EEOC’s guidance also stresses an employer’s obligations to disabled veterans with respect to the hiring process.  Although the EEOC typically advises employers not to ask job applicants about disabilities prior to a job offer being made, the agency sanctions such inquiries where they are made for “affirmative action purposes,” such as pursuant to a voluntary or involuntary affirmative action program.  In fact, the EEOC advises that, even absent an affirmative action plan, an employer may give preference in hiring to a veteran with a service-connected disability over other applicants.

However, if an employer invites applicants to voluntarily self-identify as disabled, the employer must make clear to the applicant that the information requested is intended for use solely in connection with its affirmative action efforts and that disclosure of such information is voluntary and will be kept confidential in accordance with the ADA’s mandates.

The EEOC’s guidance for employers on their obligations to disabled veterans addresses a number of other issues, including specific steps employers can take to recruit service members with disabilities, examples of the kinds of accommodations a disabled veteran may require, and a description of the interactive process employers should undertake to determine whether an applicant’s or employee’s disability can be reasonably accommodated.

The EEOC guide for employers
The agency’s guide for disabled veterans

Bottom Line

The EEOC’s new guidance shines a spotlight on the significant number of disabled veterans who currently are seeking to re-enter the workforce, along with the many more who will eventually be returning to civilian life.  Employers should keep in mind that in recent years, there has been an increase in USERRA litigation involving the employment, re-employment and benefits rights of able-bodied service members as well.  Thus, employers need to understand the full range of their obligations under USERRA and the ADA, as well as applicable state law.  Moreover, employers should be aware that under both federal law and some state laws, employees who are relatives of service members may also have certain rights, such as leave entitlements pursuant to the recently enacted amendments to the Family and Medical leave Act.  Some states also have enacted leave laws for family members of military personnel.