Veterans with Disabilities and Employment Related Information
Author: Wendy Taormina-Weiss
Published: 2011-12-09 : (Rev. 2013-11-15)
Federal laws providing protection for veterans with disabilities include Uniformed Services Employment and Reemployment Rights Act or USERRA and Title I of the Americans with Disabilities Act or ADA.
Main DigestStatistics from the United States government show that between October of 2001 and February of 2008 greater than 30,000 veterans who served in Iraq and Afghanistan and duty stations in the area were wounded in action.
A contract between two parties, one being the employer and the other being the employee. An employee may be defined as: A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed.
A number of these veterans lost a hand or limb or were blinded or severely burned. Other veterans were diagnosed with a hearing loss, traumatic brain injury, PTSD, or other forms of service-connected disabilities. Despite experiencing forms of disabilities, many of these veterans were able to return to work after leaving active duty.
Employment Laws and Veterans with Disabilities
There are at least two federal laws that provide important protections for veterans with disabilities. One of these laws is the, 'Uniformed Services Employment and Reemployment Rights Act,' or USERRA, which has requirements for the reemployment of veterans both with and without disabilities. The Department of Labor (DOL) is responsible for enforcement of USERRA.
Another important federal law related to employment of veterans with disabilities is Title I of the Americans with Disabilities Act (ADA), which prohibits private, state, and local government employers with more than 15 employee's from discriminating against people on the basis of the disabilities they experience. Title I of the ADA also usually requires employers to make reasonable accommodations in the workplace or the way things are done to give people with disabilities equal employment opportunities. The Equal Employment Opportunity Commission (EEOC) is responsible for the enforcement of Title I of the ADA.
Section 501 of the Rehabilitation Act uses the same standards of nondiscrimination and reasonable accommodation the ADA does. The Rehabilitation Act applies these standards to Federal Executive Branch agencies, as well as to the United States Postal Service.
Differences between USERRA and the ADA
USERRA is geared towards veterans and service-members, prohibiting discrimination against employees or people who are applying for jobs based upon their military status or obligations. USERRA protects the reemployment rights of people who leave civilian jobs to serve in the Armed Forces, to include the U.S. Reserve forces, and state, District of Columbia, territory, and National Guard as well.
While both USERRA and the ADA require reasonable accommodations, USERRA requires employers to go beyond the ADA requirements and make reasonable efforts to assist veterans who are returning to employment in becoming qualified for a job. Employers are required to assist veterans to become qualified to perform the duties of the job, whether a veteran has a service-connected disability or not. Employers need to provide training or retraining for veterans in order to make the veterans qualified for the positions available.
USERRA may also find reasonable accommodations being made available to veterans with service-connected disabilities that might not necessarily meet the ADA's definition of, 'disability.' Unlike the ADA, USERRA applies to every employer, despite the size of the particular employer.
Title I of the ADA prohibits employers from discriminating against people with disabilities who are qualified in regards to hiring, termination, promotion, and additional terms, conditions and privileges related to employment. The ADA prohibits disability-based harassment, providing that absent undue hardship, both employee's and applicants with disabilities are entitled to reasonable accommodations related to applying for jobs, performance of their jobs, and the ability to enjoy equal benefits and the privileges of employment.
The ADA states a person with disabilities may request a reasonable accommodation at any point during the process of applying for a job or during their employment. It is always best to request reasonable accommodations as soon as possible if needed. Employers may also have to provide a person with disabilities who has been provided with one type of accommodation with an additional or different type of accommodation if the nature of the disability they experience changes, or their job does.
Wounded Veterans and the ADA
Veterans who experience a severe form of disability while on active duty may not think of themselves as a person with disabilities, yet wonder if they are protected by the ADA. Veterans with disabilities are protected under the ADA if they meet the ADA's definition of, 'disability.' The ADA defines, 'an individual with a disability,' as a person who:
- Has a physical or mental impairment that substantially limits one or more major life activities, such as seeing, hearing, sitting, speaking, walking, standing, concentrating, or performing manual tasks
- Has a record of such an impairment
- Is regarded, or treated by an employer, as having a substantially limiting impairment - whether such an impairment exists or not
The Americans with Disabilities Act (ADA) covers more than people who were born with forms of disabilities. The ADA also covers people who were blinded, became deaf, people with major depression, PTSD, traumatic brain injury, and people who use wheelchairs due to injury or accident at any point in their lives for example. The ADA also does not require a person to be completely unable to work or perform other major life activities. It recognizes that many people with disabilities are capable of working and protects them from incorrect perceptions employers may have, or from the failure of employers to make what are often times simple workplace modifications.
When the military finds a veteran has a service-connected disability for the purposes of receiving benefits related to military service, does it mean the veteran is covered by the ADA? The answer is a definite, 'maybe.' A definition of, 'disabled veteran,' might be considered if a person served on active duty in the armed forces, received an honorable discharge, and has a service-connected disability, or is receiving compensation, disability retirement benefits, or a pension because of a public statute administered through the Department of Veterans Affairs or a military department. Yet it may be possible for a disabled veteran to not be covered by the ADA.
A veteran who has received a 10% disability rating from the VA for service-connected tinnitus, but does not experience a substantial limitation to their hearing or other major life activities, does not have a record of substantial limitation, and is not treated by their employer as being substantially limited, would not have a disability as defined by the ADA. It is also possible for a veteran to meet both the ADA's definition of, 'disability,' and the definition of, 'disabled veteran.' For example; if a veteran experiences a complete loss of vision from a combat-related injury, they meet the definition of, 'disabled veteran,' as well as the definition of, 'individual with a disability,' under the ADA.
The Department of Labor (DOL) - www.dol.gov/vets
The Department of Labor, through the Veterans Employment and Training Service, presents information regarding USERRA; to include a resource guide and a fact sheet.
Equal Employment Opportunity Commission (EEOC) - eeoc.gov/laws/types/disability.cfm
The Equal Employment Opportunity Commission provides enforcement guidelines and additional policy documentation related to the ADA, as well as information on ways to file a charge of discrimination under any of the statutes the EEOC enforces.
Veteran Service Organizations (VSOs) - www1.va.gov/vso/
A number of the national Veteran Service Organizations (VSO's) to include Disabled American Veterans, Paralyzed Veterans Association, AMVETS, and Blinded Veterans Association, offer services related to employment to veterans with service-connected injuries.
EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA (2002) - www.eeoc.gov/policy/docs/accommodation.html
The EEOC's Enforcement Guidance is extensive and clarifies the responsibilities and rights of both employers and individuals with disabilities in regards to reasonable accommodation and undue hardship. It provides practical examples of the types of accommodations a person with disabilities might need to enable them to be considered for a position, to perform the essential functions of a job, or to enjoy the equal benefits and privileges of their employment.
Department of Defense Computer/Electronic Accommodations Program (CAP) - www.tricare.mil/cap
The DOD's Computer/Electronic Accommodation Program provides assistive technology services to people with disabilities, supervisors, federal managers, as well as IT professionals.
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