Hunton Employment & Labor Perspectives

On February 28, 2012, the Equal Employment Opportunity Commission (“EEOC”) issued additional guidance to wounded veterans and to employers under the ADA Amendments Act of 2008.  The two publications are revised versions of guides that originally were posted by the EEOC in February 2008. This guidance reflects another move by federal agencies to address the employment of disabled persons.  Last December, we reported that the OFCCP issued a Notice of Proposed Rulemaking that would, among other things, establish a national utilization goal for individuals with disabilities. There is certainly more than one indication from the federal government that employers will likely continue to face heightened responsibilities concerning the employment of disabled individuals.

Disabled veterans are protected from employment discrimination under both the Americans with Disabilities Act (“ADA”) and the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). Most employers are familiar with their obligations under the ADA, but many are less familiar with USERRA. The expanded definition of disability under the 2008 amendments to the ADA, combined with an influx of returning veterans, means that employers must be prepared to handle appropriately their obligations to veterans with both physical and mental impairments that qualify as disabilities, such as post traumatic stress disorder. Issued in a question and answer format, the revised Guide for Employers gives insight into the EEOC’s view of the ADA’s effect on the recruiting, hiring, and accommodation of disabled veterans. The Guide for Employers includes questions regarding self-identification, affirmative action, and reasonable accommodations. USERRA provides that returning service-members generally must be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority.  The revised Guide for Employers also reminds employers that they may have obligations under USERRA to provide additional training to returning veterans to allow them to perform their jobs, whether disabled or not.

The EEOC also issued a revised Guide for Wounded Veterans to address common questions that veterans have concerning their employment after service with civil, federal contractor and federal agency employers.  The Guide for Wounded Veterans makes it plain that veterans with “service-connected” disabilities and also those without such disabilities cannot be subjected to employment discrimination. Veterans can review the Guide for Wounded Veterans to get information about self-identifying their disabled veteran status, disclosing a disability, answering an employer’s questions about a disability, and requesting an accommodation under the ADA.  The Guide for Wounded Veterans also explains the preferential treatment that veterans receive concerning employment with federal agencies under the Veterans Preference Act and the affirmative obligations that federal contractors have to hire and promote qualified disabled veterans under Vietnam Era Veteran’s Readjustment Assistance Act.