United States: New Guidance On Hiring And Managing Disabled Veterans

With the troop drawdown and the long-anticipated end of American operations in Iraq and Afghanistan, employers will have a new labor pool: returning veterans, many of whom may be disabled. To assist employers and veterans with the hiring process, the Equal Employment Opportunity Commission (EEOC) has issued two publications: Understanding Your Employment Rights Under the Americans with Disabilities Act (ADA): A Guide for Veterans (Veterans' Guide) and Veterans and the Americans with Disabilities Act (ADA): A Guide for Employers (Employers' Guide). Both publications are set up in a question and answer format and address ADA coverage and provide specific guidance on requesting and providing reasonable accommodation.

According to the EEOC, recent veterans report high rates of disabilities incurred in or aggravated during military service. Common injuries employers can expect include missing limbs, burns, spinal cord injuries, post-traumatic stress disorder (PTSD), hearing loss, traumatic brain injuries, and other impairments. Obviously, the ADA's protection against discrimination based on disability will apply to disabled veterans as it applies to other candidates.

Application Process and Interviews

The guidance points out that employers may ask a candidate if he or she is a "disabled veteran," but only for affirmative action purposes. If you are asking candidates to identify themselves as disabled veterans, you must clearly inform the candidates that the information is being requested as part of the affirmative action program, the information will be kept confidential, candidates can choose not to provide the information, and failure to provide it will not result in adverse treatment. The EEOC further points out that private employers may give preference to a veteran with a disability over other non-veteran and non-disabled applicants. Companies with federal contracts or subcontracts of $25,000 or more must take affirmative action to employ and advance qualified disabled veterans per the Vietnam Era Veteran's Readjustment Assistance Act (VEVRAA).

Interviewers should not ask candidates about obvious disabilities, like missing limbs, even if they think they are showing support or concern. According to the guidance, "Even if your disability is obvious, an employer cannot ask questions about when, where, or how you were injured." Although not asking about someone's obvious disability may seem like overlooking the elephant in the room, interviewers should stick to job-related questions. The guidance makes clear, however, that where it seems likely a candidate will need a reasonable accommodation to do the job, an employer may ask if an accommodation is needed and, if so, what type: "For example, if the job requires that you lift objects weighing up to 50 pounds, the employer can ask whether you will need assistance or ask you to demonstrate how you will perform this task."

Potential Reasonable Accommodations

Unlike some disabled applicants who may or may not know their potential rights, disabled veterans are likely to have many resources to assist them in applying for jobs and seeking accommodations. The Guides suggest 11 types of reasonable accommodations "for the application process or the job," and provide names of resources to assist with identifying potential accommodations. Some of those potential accommodations are:

• Written materials in alternate formats, such as large print, Braille, or on computer disk.
• Modified equipment or devices, such as a glare guard for a computer monitor if an individual has a traumatic brain injury, or a one-handed keyboard if an individual is missing an arm or hand.
• Permission to work from home or a modified or part-time schedule.
• A job coach to assist an individual who initially has some difficulty learning or remembering job tasks.
• Modification of supervisory methods, such as having a supervisor break complex assignments into smaller, separate tasks, provide some additional feedback or guidance on a task, or adjust methods of communication (e.g., give written rather than oral instructions for certain tasks).

Employers should keep an open mind. Evaluating a reasonable accommodation has not changed. During the application process, you need to consider if the requested accommodation will enable the person to complete the application process, whether it is reasonable, and whether it will cause an undue hardship. Similarly, during the interview process or after someone is hired, you still need to consider if the requested accommodation will enable the individual to perform the essential functions of the position and if it will pose an undue hardship. Employers are still free to select the best candidate for the position, and the law does not require that you hire someone who cannot perform the job duties. But make sure that you are not rejecting any requested accommodation out of hand because no one has ever requested it before or it sounds expensive. Returning veterans may come equipped with job coaches to help them acclimate and adapt. It may seem extreme but if you can accommodate it, do so.

The guidance specifically suggests work from home and modified schedules as potential accommodations. Again, evaluate the specific request rather than simply rejecting a request. Although most jobs require an employee to be present at the workplace, be sure that you have at least considered whether a specific job could be performed and supervised effectively from home. The key will be to engage in the interactive process and to demonstrate an openness to work with disabled applicants and employees.

Finally, the guidance points out that the Uniformed Services Employment and Reemployment Rights Act (USERRA) places additional obligations on employers who have employees returning to work following deployment. Specifically, USERRA "requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment to become qualified for a job whether or not the veteran has a service-connected disability."

Employers should review hiring processes with an eye for reasonable accommodations. Although you will not have to anticipate every potential request, thinking ahead and considering the available alternatives could help you avoid problems down the road.

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.