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Labor and Employment Alert: Time to evaluate your recruiting,hiring and accommodating practices…

According to the U.S. Equal Employment Opportunity Commission (EEOC), over the past decade, three million veterans have returned from military service and another one million are expected to return to civilian life over the course of the next five years with the anticipated drawdown of operations in the Middle East. Employers will, therefore, more regularly confront issues relative to veteran employment and/or reemployment, including the employment of disabled veterans.

The EEOC recently issued two revised publications, one for employers and one for veterans, addressing the employment rights of veterans with disabilities and the Americans with Disabilities Act (ADA). The revised guides reflect changes to the law stemming from the ADA Amendments Act of 2008, which made it easier for veterans with a wide range of impairments — including those that are often not well understood — such as traumatic brain injuries and post-traumatic stress disorder, to get needed reasonable accommodations that will enable them to work successfully. 

There are several federal laws that provide important protections for veterans with disabilities who are looking for jobs or are already in the workplace. Two of those laws — Title I of the ADA and the Uniformed Services Employment and Reemployment Rights Act (USERRA) — protect veterans from employment discrimination. Title I of the ADA, which is enforced by the EEOC, prohibits private and state and local government employers with 15 or more employees from discriminating against individuals on the basis of disability. USERRA has requirements for reemploying veterans with and without service-connected disabilities and is enforced by the U.S. Department of Labor (DOL).

The EEOC’s revised publications are intended to assist veterans in understanding their rights under the ADA and USERRA and to assist employers in providing for the rights of veterans with disabilities.

The first of the revised publications is the Guide for Employers which describes how the ADA applies to recruiting, hiring and accommodating veterans with disabilities and briefly explains how protections for veterans with disabilities differ under USERRA and the ADA. The guide also provides information on laws and regulations that employers may find helpful if they want to make recruiting and hiring veterans with disabilities a priority. The guide is in a question and answer format and addresses questions, such as:

  • What protections does the ADA provide to veterans with disabilities?
  • When is a veteran with a service-connected disability protected by the ADA?
  • May an employer ask if an applicant is a “disabled veteran” if it is seeking to hire someone with a disability?
  • What steps should an employer take if it asks an applicant to self-identify as a “disabled veteran” for affirmative action purposes?
  • What types of reasonable accommodations may veterans with disabilities need for the application process or during employment?

The second of the revised publications is the Guide for Wounded Veterans, which answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that may be necessary to help veterans with disabilities obtain and successfully maintain employment. This guide is also in a question and answer format and addresses questions, such as:

  • If I have a military disability rating or a disability rating from the VA, does that mean I am also covered by the ADA?
  • Under the ADA, is a private employer required to hire me over other applicants because I have a disability?
  • Are there any laws that will give me special consideration if I am looking for a job with the federal government?
  • Do I have to disclose an injury or illness that is not obvious during an interview or indicate on a job application that I have a disability?
  • What types of reasonable accommodations may I want to request for the application process or on the job?
  • How do I ask for a reasonable accommodation and what happens after I request a reasonable accommodation?
  • What can I do if I feel that an employer has violated the ADA by not hiring me or providing a reasonable accommodation?

In preparation for handling future veteran employment-related issues, employers should familiarize themselves with these two guides, both of which are available on the EEOC’s website at www.eeoc.gov. Employers should also evaluate their recruiting, hiring and accommodating practices to ensure that they appropriately address veterans with disabilities and are in compliance with both the ADA and USERRA.

If you would like to discuss veteran-related employment issues and/or the impact of the EEOC’s revised publications on your business, please contact:

Jim J. Boutrous II
248.220.1355
jboutrous@mcdonaldhopkins.com

Nicole J. Gray
216.348.5418
ngray@mcdonaldhopkins.com

Jenny McGovern
312.642.6151
jmcgovern@mcdonaldhopkins.com

Labor and Employment Practice

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© 2012 McDonald Hopkins LLC All Rights Reserved. This Alert is designed to provide current information for our clients, friends and their advisors regarding important legal developments. The foregoing discussion is general information rather than specific legal advice. Because it is necessary to apply legal principles to specific facts, always consult your legal advisor before using this discussion as a basis for a specific action.