Disabled Veterans Return to the Workforce

A growing population of military personnel returning from service and looking for work in the private sector has led the U.S. Equal Employment Opportunity Commission (EEOC) to issue two new guidance documents on the workplace rights of disabled veterans:

Key takeaways:

The numbers are significant:

“The U.S. Equal Employment Opportunity Commission (the EEOC) estimates that 25% of veterans returning from the Middle East conflicts will have a service-connected disability.” (EEOC Issues ADA Guidance for Employers on the Rights of Veterans with Disabilities by Katten Muchin Rosenman LLP)

Employers must proceed very carefully when inquiring about “disabled veteran” status:

“Permissible inquiries include: (i) an applicant’s ability to perform specific job functions, including whether applicants can perform job functions with or without reasonable accommodation; (ii) an applicant’s non-medical qualifications and skills, such as the applicant’s education, work history, and required certifications and licenses; and (iii) asking applicants to describe or demonstrate how they would perform job tasks.

… [E]mployers may not: (i) ask disability-related questions, or (ii) require medical examinations ‘even if [the employer] intends to look at the answers or results only at the post-offer stage.’ ‘Disability-Related Question’ means a question that is likely to elicit information about a disability. Examples include asking: (i) Whether an applicant has or has ever had a disability; (ii) What prescription medications applicants are taking; and (iii) The results of any genetic tests they have had.” (EEOC Issues New Guidance Concerning Employing Disabled Veterans by Proskauer Rose LLP)

The latest guidance reflects an increasing regulatory focus on protecting the rights of veterans:

“As the war winds down and an estimated 1 million veterans return to the workplace, the U.S. Department of Labor and the Equal Employment Opportunity Commission are preparing for veteran-related litigation. Employers can expect a renewed focus on

  • the Uniformed Services Employment and Reemployment Rights Act,
  • the EEOC’s recently issued guidance for veterans on the Americans with Disabilities Act, and
  • the DOL’s proposed regulations regarding ‘military-related’ leave under the Family and Medical Leave Act.”

(Feds Are Gearing Up for Veterans’ Return to the Workforce, and Employers Must Prepare as We Welcome Our Veterans’ Home by Constangy, Brooks & Smith, LLP)

Also of note, two recent commentaries and a video update on the Uniformed Services Employment and Reemployment Rights Act (“USERRA”):

Taking Care of the Troops (Akerman Senterfitt)

“USERRA protects individuals in the armed forces who voluntarily or involuntarily leave their employment to serve in the military or who accept certain positions in the National Disaster Medical System. USERRA provides that qualified individuals must be restored to the job and benefits level they would have achieved had they not left their employment for military service (the so-called “escalator” principle), or if this is not possible, the service member must be provided with a comparable job opportunity.” Read on>>

Uniformed Services Employment and Reemployment Rights Act – USERRA (Looper Reed & McGraw, P.C.)

“Employers must: (1) return the service member to work within two weeks of application for reemployment; (2) immediately return them to any company benefit plans including health insurance; and (3) place the service member in whatever position they reasonably could have been expected to ‘escalate’ to if they had never left for service. Additionally, an employer cannot fire a returning service member without ‘cause’ within 180 days after a service stint of 180 days or less, or one year if the service member’s stint was longer than 180 days.” Read on>>

Employment Rights for America’s Returning Veterans (Lawyers.com)

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