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.