*The U.S. Equal Employment Opportunity Commission*

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# VETERANS WITH SERVICE-CONNECTED DISABILITIES AND THE AMERICANS WITH DISABILITIES ACT (ADA): A GUIDE FOR EMPLOYERS

## Notice Concerning The Americans With Disabilities Act Amendments Act Of 2008

list of specific changes to the ADA

## Introduction

Each year, thousands of  military personnel stationed around the world leave active duty and seek to  return to jobs they held before entering the service or look to find their  first, or new, civilian jobs. According  to government statistics, between October 2001 and February, 2008, more than  30,000(1) veterans returned home with service-connected disabilities (e.g., amputations,  burns, post traumatic stress disorder (PTSD), and traumatic brain injuries).(2)

At least two federal laws  provide important protections for veterans with disabilities. The Uniformed Services Employment and  Reemployment Rights Act (USERRA), which is enforced by the U.S. Department of  Labor (DOL), sets forth the requirements for reemploying veterans with and  without service-connected disabilities.  Title I of the Americans with Disabilities Act (ADA), which the U.S. Equal  Employment Opportunity Commission (EEOC) enforces, prohibits private and state  and local government employers with 15 or more employees from discriminating  against individuals on the basis of disability.  Title I of the ADA  also generally requires covered employers to make reasonable accommodations –  changes in the workplace or in the way things are usually done that provide  individuals with disabilities equal employment opportunities. Section 501 of the Rehabilitation Act  applies the same standards of non-discrimination and reasonable accommodation  as the ADA to  Federal Executive Branch agencies and the United States Postal Service. 

This guide briefly  explains how protections for veterans with service-connected disabilities  differ under USERRA and the ADA, and then  describes how the ADA  in particular applies to recruiting, hiring, and accommodating veterans with  service-connected disabilities.(3)

How does USERRA differ from the ADA?  
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. *See*38  U.S.  Code § 4313; 20 C.F.R. §§ 1002.198, 1002.225 -.226. 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 DOL’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, where the employee’s disability prevents performance of the current  position or where providing reasonable accommodation in the current position  would result in undue hardship. (*See* Question 7.) Where 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 any time 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 EEOC’s website at www.eeoc.gov.
Is a veteran with a service-connected disability automatically protected by the ADA?
No. A veteran must meet the ADA’s definition of disability. The ADA  defines an “individual with a disability” as a person who (1) has a physical or  mental impairment that substantially limits one or more major life activities;  (2) has a record of such an impairment; or (3) is regarded as having such an  impairment. This definition of  disability may differ from the definition used in other laws. For example, the term “disabled veteran”  means an individual who has served on active duty in the armed forces, was  honorably discharged, and has a service-connected disability, or is receiving  compensation, disability retirement benefits, or pension because of a public  statute administered by the Department of Veterans Affairs or a military  department. *See* 5 U.S.C.A. § 2108.  Nevertheless, many veterans who were wounded or became ill while on  active duty meet both the definition of “disabled veteran” and the ADA’s definition of  “individual with a disability.”
Under the ADA, an individual with a  disability also must be “qualified” for the job the individual has or  wants. To be qualified, an individual  with a disability must meet the employer’s requirements for the job (such as  education, training, skills, or licenses) and must be able to perform the job’s  essential or fundamental duties, with or without reasonable accommodation.
  May an employer ask if an applicant is a �disabled veteran� if it is seeking to hire someone with a service-connected disability? 
Yes. Although employers generally may not ask for  medical information from applicants prior to making a job offer, they may do so  for affirmative action purposes. *See*EEOC Enforcement Guidance:  Preeemployment Disability-Related Questions and Medical Examinations Under the  Americans with Disabilities Act of 1990 (1995) at www.eeoc.gov/policy/docs/preemp.html. An employer, therefore, may ask applicants to  voluntarily self-identify as individuals with disabilities or “disabled  veterans” when the employer is:
undertaking  affirmative action because of a federal, state, or local law (including a  veterans’ preference law) that requires affirmative action for individuals with  disabilities; or,
voluntarily  using the information to benefit individuals with disabilities, including  veterans with service-connected disabilities.

An employer also may ask  organizations that help find employment for veterans with service-connected  disabilities whether they have suitable applicants for particular jobs and may  access websites on which veterans with service-connected disabilities post  resumes or otherwise express interest in employment.
  What steps should an employer take if it asks an applicant to self-identify as a �disabled veteran� for affirmative action purposes? 
If an employer invites  applicants to voluntarily self-identify, the employer must indicate clearly and  conspicuously on any written questionnaire used for this purpose, or state  clearly (if no written questionnaire is used), that: 
the  information requested is intended for use solely in connection with its  affirmative action obligations or its voluntary affirmative action efforts; and
the specific  information is being requested on a voluntary basis, it will be kept  confidential in accordance with the ADA, that  refusal to provide it will not subject the employee to any adverse treatment,  and that it will be used only in accordance with the ADA.

Information collected for  affirmative action purposes must be kept separate from the application to  ensure that confidentiality is maintained.  
    May an employer give preference in hiring to a veteran with a service-connected disability over other applicants?
Yes. The ADA  prohibits discrimination “against a qualified individual with a disability  because of the disability of such individual.”  However, the law neither prohibits nor requires affirmative action on  behalf of individuals with disabilities.  An employer, therefore, may--but is not required to--hire a qualified  individual with a disability (including a veteran with a service-connected  disability) over a qualified applicant without a disability.
Specific rules and regulations  govern the hiring of veterans by federal employers. Federal agencies are allowed to use “special  hiring authorities” to hire individuals with disabilities outside the normal  competitive hiring process, and sometimes are even required to give preferential  treatment to veterans, including disabled veterans, in making hiring,  promotion, or other employment decisions. *See* the U.S. Office of  Personnel Management’s question-and-answer guide on “Excepted  Service—Appointment of Persons with Disabilities and Career and  Career-Conditional Appointments” at www.opm.gov/disability/appointment_disabilities.asp and OPM’s “Vet Guide” at www.opm.gov/veterans/html/vetguide.asp; *see also*OPM’s Disabled Veterans  Affirmative Action Program at www.opm.gov/veterans/dvaap.asp. 
Even where employers do  not specifically recruit veterans with service-connected disabilities, they  should make sure that there is nothing in a job announcement or on an  application form that would discourage anyone with a disability from  applying. For example, employers should  not state in vacancy announcements that applicants must be in “excellent  health” or describe how a function must be performed (e.g., “requires extended  standing”) but, instead, should describe the actual function to be performed  (e.g., “requires frequent lifting of objects that weigh more than 50  pounds”). Often, reasonable  accommodations are available that will allow a veteran with a service-connected  disability to perform a function in a way that is different from the way it is  typically done.
    What are some specific steps employers may take to recruit and hire veterans with service-connected disabilities?
In addition to measures  specifically applicable to federal employers (see Question 5), there are a  number of steps that any employer may take to recruit and hire veterans with  service-connected disabilities, such as:
stating on a  job advertisement or vacancy announcement that it is an equal opportunity  employer and that individuals with disabilities, including “disabled veterans”  or veterans with service-connected disabilities, are encouraged to apply”    
- ensuring that  on-line job announcements, recruiting information, and application processes  are accessible to individuals with disabilities, including applicants who have  service-connected disabilities     making  written recruiting materials, such as application forms and brochures,  available in alternate formats (e.g., Braille, large print, etc.), or assisting  veterans with disabilities in completing application materials when necessary****  sending  vacancy announcements to, and asking for referrals from, government, community,  military organizations, and One Stop Career Centers that train and/or support  veterans with service-connected disabilities  posting  advertisements and vacancy announcements in publications for veterans****  attending job  fairs and using online resume databases that connect job-seeking veterans with  civilian employers****  surveying  other employers to learn about their successful outreach efforts       What types of reasonable accommodations may veterans with service-connected disabilities need for the application process or during employment?
While not all veterans  with service-connected disabilities will need an accommodation or require the  same accommodation, some may need one or more of the following to apply for or  perform a job:
written  materials in accessible formats, such as large print, Braille, or on computer  disk
recruitment  fairs, interviews, tests, and training held in accessible locations
modified  equipment or devices (e.g., assistive technology that would allow a blind  person to use a computer or someone who is deaf or hard of hearing to use a  telephone; a glare guard for a computer monitor used by a person with a  traumatic brain injury; a one-handed keyboard for a person missing an arm or  hand)
physical  modifications to the workplace (e.g., reconfiguring a workspace, including  adjusting the height of a desk or shelves for a person in a wheelchair)
permission to  work from home
leave for  treatment, recuperation, or training related to their disability
modified or  part-time work schedules 
a job coach  who could assist an employee who initially has some difficulty learning or  remembering job tasks
reassignment  to a vacant position where a disability prevents performance of the employee’s  current job, or where accommodating the employee in the current job would  result in undue hardship

How does an employer know when a veteran with a service-connected disability needs an accommodation?
Usually, the process of  providing a reasonable accommodation will begin with a request from the  individual with a service-connected disability.  A family member, friend, health professional, rehabilitation counselor,  or other representative also may request a reasonable accommodation on the  veteran’s behalf. The request does not  have to mention the ADA  or use the term “reasonable accommodation” and simply can be an oral or written  statement indicating that the individual needs an adjustment or change in the  application process or at work for a reason related to a medical condition. A request for reasonable accommodation is the  first step in an informal interactive process between the individual and the  employer. 
The process will involve  determining whether the veteran requesting a reasonable accommodation has a  disability (where this is not obvious or already known) and identifying  accommodation solutions. Employers  should ask the particular veteran requesting accommodation because of  disability what is needed to do the job.  There also are extensive public and private resources to help employers  identify reasonable accommodations for employees with particular  disabilities. For example, the website  for the Job Accommodation Network (JAN) provides a practical guide for  employers on reasonable accommodation, as well as information about  accommodations for specific disabilities, including one on “Accommodating  Service Members and Veterans with PTSD.” *See*JAN’s website at www.jan.wvu.edu. 
May an employer ask a veteran with a service-connected disability whether a reasonable accommodation is needed if none has been requested?
Sometimes. During the application process, an employer  may explain what the hiring process involves (e.g., an interview, timed written  test, or job demonstration) and ask all applicants whether they will need a  reasonable accommodation to participate in any part of the process. In addition, if an employer reasonably  believes that a veteran with an obvious service-connected disability (e.g., a  veteran who is blind or missing a limb) who is applying for a particular job  will need a reasonable accommodation to do that job, the employer may ask  whether an accommodation is needed and, if so, what type. Once a veteran with a service-connected  disability has started working, an employer may ask whether an accommodation is  needed when it reasonably appears that the person is experiencing workplace  problems because of a medical condition. 
Because many veterans may  not view their service-related injuries as disabilities, they may not ask, or  know that they are entitled to ask, for a reasonable accommodation. As a result, it may be critical for the  employer to initiate a conversation with a veteran who is experiencing problems  to determine an appropriate accommodation.  Working together, the employer and veteran should identify what the  veteran cannot do and then discuss ways to address any identified performance  issue(s).
Where can employers find out more about employing veterans with service-connected disabilities?
This guide includes a  list of public and private organizations that can assist employers who want to  recruit and hire veterans with service-connected disabilities, or who have more  questions about their obligations under USERRA and the ADA.  It also includes resources on reasonable accommodation. 
RESOURCES
Laws Protecting Veterans with  Service-Connected Disabilities
ADAEqual Employment Opportunity  Commission (EEOC)
www.eeoc.gov/ada/adadocs.html
EEOC’s website  provides enforcement guidances and other policy documents on the ADA.
USERRAThe Department of Labor (DOL)
www.dol.gov/vets
DOL, through  the Veterans’ Employment and Training Service, provides information for  employers on USERRA, including a resource guide and fact sheet.
Recruiting
President’s National Hire Veterans Committee –  Hire Vets First
www.hirevetsfirst.gov
This comprehensive career  website is designed to help employers find qualified veterans, as well as help  veterans to make the most of a national network of employment resources.
**One Stop Career Centers**www.hirevetsfirst.gov/onestop_emp.asp;  Careeronestop, www.servicelocator.org
The One Stop Career  Centers serve the needs of those looking for jobs and employers seeking  employees. They assist businesses with  recruitment, training, and retention of skilled workers. There are nearly 2,000  One Stop Career Centers nationwide.
**Employer Assistance and Recruiting Network (EARN)**www.earnworks.com, 1-866-EARN NOW  (327-6669)
Funded by the U.S.  Department of Labor’s Office of Disability Employment Policy (ODEP), EARN is a  national toll-free and electronic information referral service to assist  employers in locating and recruiting qualified individuals with disabilities  who are seeking jobs. 
**Occupational Information Network (O*NET) Online**www.online.onetcenter.org
Through the Department of  Labor, employers may access a comprehensive database that helps align military  skills, knowledge, and training with workplace needs. Information on reasonable accommodation also  is available. 
**Vocational Rehabilitation**www.va.gov
The U.S. Department of  Veterans Affairs supports a nationwide employment training program for veterans  with service-related injuries. There are  56 regional offices which administer this program.
**State Veteran Employment Services**www.dol.gov/vets/aboutvets/contacts/main.htm
The U.S. Department of  Labor (DOL), through its Veterans Employment Training Service (VETS), helps  support a network of local employment service professionals dedicated to  assisting veterans with service-related injuries in locating and securing  employment. 
**Veteran Service Organizations (VSOs)**www1.va.gov/vso/
Many of the national  VSOs, such as Disabled American Veterans, AMVETS, Paralyzed Veterans  Association, and Blinded Veterans Association, offer employment-related  services to veterans with service-related injuries in various localities and  can be an excellent resource for locating job seekers.
Reasonable Accommodation****
**EEOC Enforcement Guidance: Reasonable  Accommodation and Undue Hardship Under the ADA (2002)**www.eeoc.gov/policy/docs/accommodation.html
This extensive guidance  clarifies the rights and responsibilities of employers and individuals with  disabilities regarding reasonable accommodation and undue hardship and provides  practical examples of the types of accommodations that may be needed to enable  a person with a disability to be considered for a position, perform the  essential functions of a job, or enjoy the equal benefits and privileges of  employment.
**Job Accommodation Network (JAN)**www.jan.wvu.edu
JAN  provides a variety of resources for employers seeking to hire employees with  disabilities. JAN also provides lists of  possible accommodations based on specific disabilities as well as links to  various other accommodation providers.
**Department of Defense  Computer/Electronic Accommodations Program (CAP)**ww.tricare.mil/cap
CAP  provides assistive technology and services to individuals with disabilities,  federal managers, supervisors, and IT professionals.
Footnotes
(1) According to the U.S. Department of Defense  (DoD), as of February, 2008, 30,960 military personnel serving in the Global  War on Terror (combining Iraq,  Afghanistan,  and surrounding duty stations) have been wounded in action. *See*DoD  Personnel and Procurement Statistics at http://siadapp.dmdc.osd.mil/personnel/CASUALTY/castop.htm.
(2) The term “service-connected” means, with respect  to disability or death, that the disability was incurred or aggravated, or that  the death resulted from a disability incurred or aggravated, in the line of  duty in the active military, naval, or air service. *See*38 U.S.Code § 101. 
(3) In this document, the terms “veteran  with a service-connected disability” and “disabled veteran” are  synonymous. The terms “disability” and  “individual with a disability” have the same meaning in this document as they  do in Title I of the ADA. For more information about the relationship  of these terms to one another, see Question 2.
*This page was last modified on February 29, 2008.*
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