Employment: EEOC Releases New Guidance for Hiring of Veterans with Disabilities

04.01.12

Each year, thousands of military personnel leave active duty and return to their old jobs or begin looking for new jobs. Up to 25% of these veterans have a service connected disability such as missing limbs, burns, spinal cord injuries, post traumatic stress disorder (PTSD), hearing loss, or traumatic brain injuries. The EEOC has recently provided guidance on how the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to the recruiting, hiring and accommodating of these veterans with disabilities.

As you know, the ADA prohibits an employer from treating any applicant or employee unfavorably because he has a disability, a history of having a disability, or because he is perceived as having a disability. In the context of a veteran, this may mean, for example, that an employer is prohibited from refusing to hire the veteran because he has PTSD, was previously diagnosed with PTSD, or is assumed to have PTSD.

Although the ADA generally prohibits employers from asking for medical information prior to making a job offer, if an employer has an affirmative action program, the employer may ask applicants to self identify as disabled veterans. In addition, the ADA permits, but does not require, an employer to hire a qualified applicant with a disability over a qualified applicant without a disability.

USERRA, like the ADA, requires employers to make reasonable accommodations for veterans with disabilities. USERRA, however, goes further than the ADA by making reasonable efforts to assist a veteran 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. And, unlike the ADA, USERRA applies to all employers, regardless of size.

By Rebecca M. Fowler, rfowler@dsda.com

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Rebecca D. Bullard

Rebecca D. Bullard

Rebecca represents clients primarily in labor and employment
litigation and counsels clients regarding everyday employment matters. 

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