Recent Guidelines for Employers of Active Duty & Veteran Service Members

by Nexsen Pruet, PLLC
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With the recent drawdown of troops serving in Iraq and Afghanistan, many veterans will be leaving active military duty and returning to the U.S. workforce. The Equal Employment Opportunity Commission (EEOC) has issued timely and relevant guidance for employers on this topic, specifically addressing protections afforded veterans under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Americans With Disabilities Act (ADA). (See www1.eeoc.gov//eeoc/publications/ada_veterans_employers.cfm). In addition, the guidance briefly addresses special veteran-related requirements applicable to federal contractors.

USERRA

USERRA applies to almost all employers, both private and governmental, regardless of size, and prohibits discrimina- tion on the basis of an employee’s service in the uniformed services. It is enforced by the U.S. Department of Labor, which has recently stepped up efforts to identify employers who fail to comply with the law.

The law is unique in that it places special requirements on employers above and beyond those included in other federal anti-discrimination laws. For example, USERRA requires that an employer place a returning service member in the position the individual would have held in the event he or she had not been absent for military service.  This is commonly referred to as USERRA’s “escalator”  clause.  In addition, USERRA requires employers to take affirmative steps, such as providing training for returning service members, to assist them in qualifying for re-employment.

Employers must also make reasonable accommodations for veterans who suffer from disabilities incurred or aggravated during military service, including where, because of the disability, the individual is no longer qualified to be employed in the position he or she would have held but for the military service. If such an accommodation is not possible, or if the returning veteran is no longer qualified for the position for a reason unrelated to the disability, the employee must generally be placed in an equivalent position of comparable seniority, status and pay for which he or she is either qualified or could be qualified with reasonable efforts by the employer. If this is not possible, the employer is required to re-employ the veteran in a position consisting of the nearest approximation to such a position.  Returning veterans may also be entitled to protection from discharge for up to a year after their return to employment.

The recent EEOC guidance notes that USERRA’s requirements are more far-reaching than the ADA in that USERRA requires employers to make reasonable efforts to assist a returning veteran become qualified for a job whether or not the veteran has a service-connected disability. These are only a few of the many protections afforded returning veterans under USERRA.

The ADA

The EEOC’s guidance cites a Bureau of Labor Statistics report finding that approximately 25 percent of recent veterans suffer from some type of service-related disability, including conditions such as post-traumatic stress disorder (PTSD) and loss of limb.  The ADA prohibits employers with at least 15 employees from treating applicants or employees unfa- vorably with regard to terms and conditions of employment because of a disability, a history of disability or where the employer regards the individual as having a disability.

EEOC gives the following examples: It is unlawful for an employer to refuse to hire a veteran because he or she 1) has PTSD; 2) was previously diagnosed with PTSD; or 3) because the employer assumes he or she has PTSD. In addition, employers may not refuse to hire a veteran because a disability rating is assigned by the U.S. Department of Veterans Affairs.  If a veteran applicant or employee is qualified for a job and is disabled as that term is defined under the ADA, the individual is, absent undue hardship on the employer, entitled to reasonable accommodations and other protections afforded under the ADA.

Employers should keep in mind that the ADA Amendments Act of 2008 now prohibits employers from considering most mitigating measures – including, for example, prosthetic limbs or medications used to control PTSD – in determining whether an individual is disabled under the ADA. The EEOC guidance emphasizes that private employers may give preference in hiring to a disabled veteran, as the ADA does not prohibit affirmative action on the behalf of disabled individuals, and provides helpful tips for how employers can go about recruiting and hiring veterans with disabilities.

Special Requirements For Federal Contractors

The EEOC guidance notes that the Vietnam Era Veteran’s Readjustment Assistance Act (VEVRAA), which applies to federal contractors with contracts or subcontracts in the amount of $25,000  or more, contains special affirmative veteran-related requirements. For example, VEVRAA requires that covered employers take affirmative action to employ and advance qualified disabled veterans, that they post open positions with certain employment service delivery systems and that they provide covered veterans priority regarding the positions.

Employers should take steps now to understand and provide necessary training regarding the rights of returning veterans, be they applicants or current employees. The EEOC guidance also provides helpful guidance and identifies resources available to employers for attracting and recruiting veteran applicants.

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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