With more and more troops returning from Iraq and Afghanistan, employers may need guidance on complying with their legal obligations to integrate newly returned veterans into the workforce. The need for guidance may be particularly acute when employers are working with veterans who have suffered traumatic brain injuries (TBI) and/or post-traumatic stress disorder (PTSD). These two conditions are often misunderstood, which can lead to employer missteps.

TBI and PTSD: Injuries with Sometimes Subtle Symptoms

A TBI is a physical injury to the brain. A TBI disrupts the function of the brain and results from a penetrating head injury, or a blow or jolt to the head. Some TBIs are mild and of short-term duration; others are more severe and may have long-lasting effects. The RAND Corporation estimates that approximately 19 percent of veterans of the Iraq and/or Afghanistan wars have suffered a TBI. Symptoms may vary, but common ones include fatigue, sleep disturbances, dizziness, balance problems, sensitivity to bright light, headaches, memory problems, irritability, and/or poor concentration.

PTSD is a mental disorder that occurs after an individual experiences or witnesses an extremely traumatic or life-threatening event and responds with intense fear or helplessness. Onset of PTSD may be immediate, or may present itself weeks, months, or even years after an event. According to the U.S. Department of Veterans Affairs, between 11 and 20 percent of veterans of the Iraq and/or Afghanistan wars experience PTSD. As with TBI, symptoms vary widely, but some common ones are poor concentration, being hyper-alert to real or perceived dangers, feeling on edge, depression, irritability, and/or difficulty falling or staying asleep.

Sometimes veterans have been diagnosed with a TBI and/ or PTSD, and sometimes the conditions go undiagnosed. Therefore, when veterans with either or both of these conditions seek employment or reemployment, employers may be faced with some challenging issues and need to be prepared to address them.

Federal Laws Protecting Veterans

A brief overview of three major federal laws protecting veterans in the workplace provides a general framework for identifying the scope of an employer's obligations to veterans with a TBI or PTSD.

The Uniformed Services Employment and Reemployment Rights Act

The Uniformed Services Employment and Reemployment Rights Act (USERRA) covers all employers, regardless of size. USERRA prohibits discrimination against individuals based on their military status or obligations and also provides certain reemployment rights for those individuals who leave their jobs to serve in the uniformed services. Significantly, employers may have obligations pursuant to USERRA to train, retrain, and/or otherwise accommodate veterans returning to the workforce, including but not limited to those who have a TBI or PTSD.

The Americans with Disabilities Act

The Americans with Disabilities Act (ADA) covers employers with 15 or more employees and prohibits employment discrimination against qualified individuals based on disability, perceived disability, and/or a history of a disability. Covered employers also must provide reasonable accommodations to qualified individuals with a disability, if the accommodations would allow the individual to perform the essential functions of the job in question. While not every impairment is a disability covered under the ADA, many veterans with a TBI and/or PTSD may be covered by this law.

The Vietnam Era Veterans' Readjustment Assistance Act

A third federal statute, the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA), requires federal contractors with at least one federal contract of $100,000 or more to take certain actions to employ and advance veterans. For instance, federal contractors must notify appropriate employment service delivery systems of most of the contractors' available jobs, with few exceptions, and the employment service delivery system in turn must give priority referrals to veterans. Federal contractors covered by this statute also must ask veterans who have been offered employment if they wish to self-identify as a disabled veteran, recently separated veteran, Armed Forces service medical veteran, and/or a veteran who served during a war or in a campaign or expedition for which a campaign badge has been authorized. Additionally, federal contractors covered by VEVRAA must report the employment of the covered categories of veterans on an annual basis to the U.S. Department of Labor.

Some Do's and Don't's

Employers should keep in mind that if an employment inquiry would be inappropriate for a nonveteran applicant, then it generally would be inappropriate for a veteran applicant as well. For example, while an employer may ask an applicant if he/she can perform the essential functions of the job, with or without accommodations, it is unlawful for an employer to ask an applicant for medical information. Similarly, an employer cannot ask a veteran returning from a combat zone in Iraq if he/she had or has a TBI, PTSD, or any other medical condition.

Furthermore, an employer cannot require a veteran applicant or employee to undergo a medical exam unless it requires medical exams for all applicants or employees under the same circumstances and the medical exam is job-related and consistent with business necessity. For instance, if an employer believes that a veteran employee with a disclosed diagnosis of PTSD is exhibiting workplace behavior that puts the employee's or others' safety at risk, the employer may require a medical exam if the employer would mandate an exam for anyone exhibiting similar behaviors. An employer may not, however, require a medical exam of a veteran because the employer is concerned that any individual with PTSD may be likely to exhibit violent conduct. Such misguided beliefs cannot form the basis for a medical exam.

Employers also cannot treat veterans with a TBI or PTSD differently than others when performance issues arise. For example, if an employer observes sub-par work performance, the employer may take corrective action against the employee, whether or not the employee is a veteran and/or has a TBI or PTSD. However, if an employer knows a veteran's TBI or PTSD symptoms may be interfering with the employee's performance, the employer must explore reasonable accommodations before disciplining the employee.

Finally, employers may terminate the employment of veterans for any legitimate nondiscriminatory reason. In doing so, employers must apply the same employment standards to veterans (with or without disabilities) and nonveterans to avoid legal exposure based on veteran status and, if applicable, the veteran's disability.

Some Potential Accommodations for Veterans with TBI and/or PTSD

A veteran with a TBI or PTSD may request an accommodation. If the veteran's medical condition rises to the level of a disability under the ADA, the employer must engage in an interactive process to determine what, if any, reasonable accommodations would enable the veteran to perform the essential functions of the job. Moreover, even if the veteran's condition is not an ADA-covered disability, the employer may be required pursuant to USERRA to provide training or retraining if it would help the employee perform the job. However, if a veteran does not disclose the fact that he/she has a TBI or PTSD, and the employer is not otherwise aware of it, the employer is not required to offer potential accommodations. Finally, not all veterans with a TBI or PTSD need accommodations.

Employers should ask the veteran what accommodations, if any, the veteran believes will help. Involving the veteran in the process is important for a successful dialogue and finding potential solutions and is required by law. Significantly, employers need not implement a veteran's suggestion for an accommodation if the accommodation would cause an undue hardship to the employer and/or if other, effective reasonable accommodations are available.

Some possible accommodations for employees with a TBI may include, but are not limited to, provision of a work environment with low levels of noise and/or light, regular breaks, access to handicapped parking and guardrails, additional time to learn tasks, time management devices, and tasks without much variation. For employees with a PTSD, possible accommodations may include, but are not limited to, provision of both written and verbal instructions, ability to take breaks as needed, schedule reminders, and white noise machines to reduce potential distractions. In all instances, employers must make individualized assessments of appropriate accommodations, as not all veterans experience the same symptoms or difficulties in dealing with a TBI or PTSD.

In sum, employers need to know the legal landscape about veteran employment and reemployment so that they can best assist these individuals in their transition to civilian employment. Employers who put in this effort likely will be rewarded with employees who have valuable work and life skills that can be put to good use in any workplace.

Employer Resources for Veteran Issues

There are many resources available to assist employers in how to transition veterans back into the civilian workforce while avoiding legal pitfalls. Some of the resources include:

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.