Due to U.S. overseas military commitments, veterans are re-entering the workforce with increasing frequency. Most employers realize that these veterans are entitled to certain protections not available to other employees. Not only do employers have obligations related to the hiring and employment of veterans with service-connected disabilities under the Americans with Disabilities Act, they must also meet the protections guaranteed to non-disabled veterans by the Uniformed Services Employment and Reemployment Rights Act (USERRA). Earlier this month, the Equal Employment Opportunity Commission released guidance for employers on the interplay of the two laws.
USERRA provides most of the important protections for veterans re-entering the workforce. First, USERRA requires employers to assist returning veterans in becoming qualified to perform the job, including training or retraining for the position, regardless of whether the veteran has a service-connected disability. Additionally, both USERRA and the ADA obligate employers to provide reasonable accommodations to disabled employees. However, disabled veterans who do not meet the ADA’s definition of an “individual with a disability” may still be entitled to reasonable accommodations under USERRA.
Second, private employers are not required to hire disabled veterans over more qualified non-disabled applicants. However, employers may give preferential treatment to veterans with service-connected disabilities when making hiring, promotion and other employment decisions. Also, employers may ask applicants to indicate whether they are disabled veterans as long as the information is requested for affirmative action purposes. Employers cannot ask when, where or how an applicant was injured, but where it appears that an accommodation will likely be necessary, employers may generally ask the applicant if an accommodation is needed and if so, what type.
Employers who do ask applicants to self-identify as disabled veterans must clearly state that the veteran’s disclosure is voluntary and will not be used adversely against the employee, and that the information will be kept confidential and used only in accordance with the ADA. The new EEOC guidance can be found at www.eeoc.gov/facts/veterans-disabilities.html.