Executive Summary: The Obama Administration's recently issued policy directives and the issuance of new guidance documents by the Equal Employment Opportunity Commission (EEOC) suggest increased scrutiny on the part of the EEOC when it comes to the hiring and employment of veterans, particularly those who may be disabled.
Every year, thousands of men and women in the armed forces return from active duty to their homes in the United States. With the end to the Iraq war and troop drawdown in Afghanistan imminent, these veterans will be returning in ever greater numbers, many of them wounded or disabled during their service. On June 1, during an address at the Minnesota facility of major defense contractor Honeywell International Inc., President Barack Obama announced a new program aimed at increasing the employment rate for veterans and touted Honeywell's efforts in this regard. The program focuses on enabling veterans to draw on their military experience by easing their path to civilian licensing in sectors such as manufacturing, healthcare and transportation.
The President's address comes on the heels of the publication of two new guidance documents by the Equal Employment Opportunity Commission (EEOC) on the employment rights of veterans under the Americans with Disabilities Act (ADA). The policy directives from the current administration and the issuance of new guidance suggest increased scrutiny on the part of the EEOC when it comes to the hiring and employment of veterans, particularly those who may be disabled. As a result, employers should carefully review the two guidance documents, entitled "Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers" and "Veterans and the Americans with Disabilities Act: A Guide for Veterans," as they represent what the EEOC considers the current best practices in this area.
Highlights of the EEOC's New Guides
The EEOC's Guide for Employers advises employers via Q & A format about protections for veterans with disabilities under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the ADA, as well as preferences afforded to veterans under other statutes. Meanwhile, the Guide for Veterans focuses on ensuring that disabled veterans are aware of their potential rights and the resources available to them. Here are a few of the highlights from the two documents:
The EEOC maintains that employers generally may not ask an applicant disability-related questions or for medical information at the pre-offer stage. The new guidance specifies that an employer may inquire about an applicant's disabled veteran status if it is doing so for affirmative action purposes. If the employer encourages applicants to self-identify as disabled in this way, however, it must give clear notice to the applicant of the following: that the information is solely for use in the employer's affirmative action program, that the information will be kept confidential, that providing the information is voluntary, that refusal to provide it will not result in adverse treatment, and that the information will be used in accordance with the ADA.
The EEOC guidance points out that a private employer may give preference to a disabled candidate over a qualified candidate without a disability because there is nothing in the ADA to prevent affirmative action on behalf of individuals with disabilities. At the same time, the EEOC states that businesses with federal contracts of certain values ($25,000 or $100,000 depending on the contract date) must "take affirmative action to employ and advance qualified disabled veterans" in accordance with the Vietnam Era Veteran's Readjustment Assistance Act (VEVRAA). Finally, the guidance highlights several laws and programs that instruct the federal government to give special consideration to veterans with disabilities.
The EEOC also discusses how an employer might appropriately ask a veteran with a disability if a reasonable accommodation is needed when none has been requested. First, at the application stage, so long as it asks all applicants, an employer may ask whether the veteran will need a reasonable accommodation to participate in any part of the hiring process. Also, where a veteran has an obvious service-connected disability (e.g., a veteran who is blind or missing a limb) and the employer reasonably believes the veteran will need a reasonable accommodation to do his or her job, the employer may ask if an accommodation will be necessary.
The guidance also gives examples of the forms such reasonable accommodations may take, including permission to work from home or a modified schedule, written materials in alternate formats, modified equipment or devices, and assignment of a job coach to assist an employee who initially has some difficulty learning or remembering job tasks.
Differences between USERRA and the ADA
Finally, the new guidance makes note of some of the differences between USERRA and the ADA. Both statutes require employers to make reasonable accommodations for disabled veterans. However, USERRA goes further because it also compels employers to make reasonable efforts to assist a returning veteran to become qualified for a job. Such reasonable efforts could include training or retraining for a position. In addition, USERRA is broader in scope because its protections are not limited to veterans with disabilities.
The Bottom Line for Employers
Military veterans often exhibit work ethic, experience and skills learned during their service that employers such as Honeywell and many others value highly. The EEOC's new guidance reminds employers aiming to tap into this growing talent pool that they should expect veterans, disabled or otherwise, to be well-educated on their rights. In addition, the guidance documents indicate that the EEOC and as well as other federal agencies will aggressively enforce antidiscrimination laws related to veterans. Employers should therefore review their hiring and accessibility practices to ensure they comport with these laws. If you have any questions regarding compliance with the ADA or USERRA, the EEOC guidance, or the benefits and challenges of recruiting and retaining veterans with disabilities, please contact the author of this alert, Brian Cunningham, firstname.lastname@example.org, or the Ford & Harrison attorney with whom you usually work.
 The initiative, entitled The Veterans Retraining Assistance Program (VRAP), is one of several to be implemented via The Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011. Separate programs to assist veterans with service-connected disabilities and to provide tax incentives to employers are also underway. For more, see http://benefits.va.gov/vow/index.htm.
 Disability-related questions are those that are likely to elicit information about a disability. Employers may ask questions to evaluate whether an applicant is qualified for the job, however, even though the answers might contain disability-related information. This includes asking whether an applicant can perform job functions with or without a reasonable accommodation. For more information, see EEOC Enforcement Guidance: Preeemployment Disability-Related Questions and Medical Examinations Under the Americans with Disabilities Act of 1990 (1995) at www.eeoc.gov/policy/docs/preemp.html.
Administrative Law Updates, Civil Rights Updates, Labor & Employment Law Updates, Military Law Updates
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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