Edward M. Kaplan, Jeanine L. Poole, William D. Pandolph, James E. Owers, Timothy A. Gudas, Editors
Sulloway & Hollis, P.L.L.C.

Vol. 13, No. 3
May 2008

MILITARY SERVICE

New EEOC guidance relating to veterans with disabilities

On February 29, 2008, the Equal Employment Opportunity Commission (EEOC) issued two question-and-answer guides in an effort to assist employers and veterans with workplace issues affecting veterans with service-connected disabilities. According to the introduction in each guide, government statistics indicate that between October 2001 and February 2008, more than 30,000 veterans serving in Iraq, Afghanistan, and surrounding duty stations were wounded in action. Those wounds included the loss of limbs, amputations, burns, loss of sight, loss of hearing, posttraumatic stress disorder, traumatic brain injuries, and other service-connected disabilities.

The guides are intended to answer questions that employers and veterans may have regarding the protections provided to veterans by the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Americans with Disabilities Act (ADA). While both guides respond to a number of questions, the guide for employers provides a good summary, presented below, of the differences between the protections provided by the two laws.

USERRA versus ADA: differences outlined

USERRA prohibits employers from discriminating against employees or applicants for employment on the basis of their military status or military obligations. It also protects the reemployment rights of those who leave their civilian jobs (whether voluntarily or involuntarily) to serve in the uniformed services, including the U.S. reserve forces and state, District of Columbia, and territory (e.g., Guam) National Guards.

Both USERRA and the ADA include reasonable accommodation obligations; however, USERRA requires employers to go further than the ADA by making reasonable efforts to assist a veteran who is returning to employment in becoming qualified for a job. The employer must help the veteran become qualified to perform the duties of the position whether or not the veteran has a service-connected disability requiring reasonable accommodation. This could include providing training or retraining for the position.

Additionally, reasonable accommodations may be available under USERRA for individuals whose service-connected disabilities may not necessarily meet the ADA's definition of "disability." USERRA also applies to all employers, regardless of size. Information on the reemployment rights of uniformed service personnel can be found on the U.S. Department of Labor's website at www.dol.gov/vets.

Title I of the ADA prohibits employers from discriminating against qualified individuals with disabilities with respect to hiring, promotion, termination, and other terms, conditions, and privileges of employment. The ADA also prohibits disability-based harassment and provides that absent undue hardship ("significant difficulty or expense"), applicants and employees with disabilities are entitled to reasonable accommodation. Reasonable accommodations under the ADA range from job- restructuring (e.g., shifting marginal ― or minor ― functions that an employee is unable to perform because of a disability to other employees) to reassignment of an employee with a disability to a vacant position, when the employee's disability prevents performance of the current position or if providing reasonable accommodation in the current position would result in undue hardship.

When providing a particular accommodation would result in undue hardship, an employer must consider whether another accommodation would not. Under the ADA, an individual may request a reasonable accommodation anytime during the application process or during employment. Additionally, the obligation under the ADA to make a reasonable accommodation is ongoing, meaning that an employer may need to provide an additional or different accommodation from one that it is already providing (e.g., when the nature of a disability or a job changes). Documents explaining Title I of the ADA can be found on the EEOC's website at www.eeoc.gov.

Bottom line

Both guides are available online. You can download the guide for employers at www.eeoc.gov/facts/veterans-disabilities-employers.html. The guide for veterans can be accessed via the EEOC's website at www.eeoc.gov/facts/veterans-disabilities.html.

Copyright 2008 M. Lee Smith Publishers LLC

NEW HAMPSHIRE EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney.