EEOC Issues "Guidance" on Returning Veterans with Disabilities

The EEOC recently issued two Guides providing technical assistance for employers and veterans on workplace issues affecting veterans with service-connected disabilities under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Guides can be found at http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm and http://www.eeoc.gov/eeoc/publications/ada_veterans.cfm.

The EEOC enforces Title I of the ADA, which prohibits employment discrimination against people with disabilities in the private sector and in state and local governments. The U.S. Department of Labor (DOL) enforces USERRA, which applies to the reemployment of veterans with and without service-connected disabilities.

In the Guides, the EEOC explains how protections for veterans with service-connected disabilities differ under the ADA and USERRA, and answers questions that veterans with service-connected disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look to find their first, or new, civilian jobs. The Guides highlight several important points:

1. All of the expanded provisions of the recently amended ADA apply to disabled veterans, first to qualify them as “disabled” and then to establish them as deserving of a reasonable accommodation.
   
   
2. Employers can ask disabled veterans (and all individuals with disabilities) to voluntarily self-identify in the pre-offer context for affirmative actions purposes if the employer:
   
   
   • Is undertaking affirmative action because of a federal, state, or local law (including a veterans' preference law) that requires affirmative action for individuals with disabilities (that is, the law requires some action to be taken on behalf of such individuals); or
     
     
   • The employer is voluntarily using the information to benefit individuals with disabilities.
     
     Notably, the second condition includes just about everyone, whether under an affirmative action law or Executive Order or not.
3. Private sector employers can prefer disabled veterans over other qualified candidates because the ADA both prevents discrimination against individuals with disabilities and permits affirmative action on their behalf.
   
   
4. In several respects, USERRA provides returning veterans with rights greater than those available under the ADA. For example, under USERRA employers must make reasonable efforts to assist a veteran who is returning to employment in becoming qualified for a job, i.e., 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. See 38 U.S. Code § 4313; 20 C.F.R. §§ 1002.198, 1002.225 -.226. Additionally, reasonable accommodations may be available under USERRA for individuals whose service-connected disabilities may not necessarily meet the ADA’s definition of “disability.” USERRA also applies to all employers, regardless of size.

The Guides make it clear that the employment of disabled veterans has become the top priority of both the DOL and the EEOC. Even though the Guides are just statements by an agency of its own policy and views, and courts are not required to follow them, they inform employers how the agency intends to apply the law, meaning that employers who wish to avoid litigation should heed the agency's directives.