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You’re listening to the Disability Law Lowdown Podcast Show #31 with your host Jacquie Brennan.

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Jacquie Brennan: Today’s podcast is about veterans with service-related injuries in the workplace and the Americans with Disabilities Act. This information is from a fact sheet that was put together by the US Equal Employment Opportunity Commission. I have done the updates so that it confirms with new ADA Amendments Act since this was actually put together prior to that Act being effective.

According to government statistics, between October 2001 and February 2008 more than thirty thousand veterans were serving in Iraq, Afghanistan and surrounding duty stations and were wounded in action. Many of them have lost a hand or a limb or been severely burned or blinded. Others have been diagnosed with hearing loss, post traumatic stress disorder, traumatic brain injuries and other service-connected disabilities.

Despite their injuries, many veterans who leave active duty are able to work and so what we’re going to do today is answer some of the questions that veterans with service-connected disabilities may have about protections they are entitled to when they want to return to their former jobs or to look for or find their first, or new, civilian job. We’ll also look at changes and adjustments veterans may need because of their injuries in order to apply for or perform or take a job or enjoy equal access to the workplace.

There are two laws that protect veterans who have service-connected disabilities and we’ll talk about each of these because they’re a little bit different. The first is the Uniformed Services Employment and Re-employment Rights Act which is called USERRA. It has requirements for re-employing veterans whether or not they have service-connected disabilities. The US Department of Labor enforces USERRA.

And then of course there’s Title One of the Americans with Disabilities Act and that prohibits private and state and local government employers with fifteen or more employees from discriminating against individuals on the basis of disability. Title One of the ADA also generally requires covered employers to make reasonable accommodations, so changes in the workplace or the way that things are usually done so that individuals with disabilities are provided with equal employment opportunities. The US Equal Employment Opportunity Commission, the EEOC, enforces Title One of the ADA.

There’s one other law that can play a part also and that’s Section 501 of the Rehabilitation Act. It applies the same standards of non-discrimination and reasonable accommodation as the ADA and it applies those to the federal executive branch agencies and also the United States Postal Service.

USERRA differs from the ADA in some important ways. 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 re-employment rights of those who leave their civilian jobs, whether they did so voluntarily or involuntarily to serve in the uniformed forces, including the US reserve forces and state, District of Columbia, even territorial or National Guards.

Both USERRA and the ADA include reasonable accommodation obligations, but 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 injury that requires a reasonable accommodation. Now this could mean providing training or retraining for the position.

USERRA also applies to all employers regardless of size. you can get more information about the re-employment rights of uniformed service personnel on the Department of Labor’s website at www.dol.gov/vets.

Now Title One of the ADA prohibits employers from discriminating against qualified individuals 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 which means significant difficulty or expense to the employer, applicants and employees with disabilities are entitled to reasonable accommodation to apply for jobs, to perform their jobs and to enjoy equal benefits and privileges of employment. That includes things like access to parts of the employer’s facility that’s available to all employees. It’s not enough just to be able to get into your particular office, you have to be able to access the break room and the kitchen sink and those kinds of things.

Under the ADA a person may ask for a reasonable accommodation at any time during the application process or during employment. It’s best to request a reasonable accommodation as soon as possible after recognizing that you need one. Additionally, an employer may have to provide someone who’s been given one type or reasonable accommodation with a different type even an additional reasonable accommodation. Documents that explain Title One of the ADA can be found on the EEOC’s website at eeoc.gov.

Now here’s a question that a vet had and posted to the EEOC. “I was severely inured during active duty but I don’t think of myself as disabled. How do I know if I’m protected by the ADA?”

Well, the ADA has a definition of disability and it defines an individual with a disability as a person who has a physical or mental impairment that substantially limits one or more major life activity or has a record of such impairment or is regarded as, or treated by the employer as if they have an impairment even when the impairment may not exist. So, even if you don’t think of yourself as having a disability, the employer might treat you as if you do which would mean that you’re protected by the ADA.

The ADA covers a lot more than just people who were born with disabilities. It also covers people who use wheelchairs or were blinded or became deaf because of an accident or an injury and individuals who have been diagnosed with medical conditions like traumatic brain injury, major depression, and PTSD at any point in their lives as long as they meet that definition of disability.

The ADA does not require that someone be completely unable to work or perform other major life activities. In fact, it recognizes that many people with physical and mental impairments are capable of working and that’s why one who section of the ADA is devoted to employment issues because people with disabilities are protected from discrimination that results from an employer’s misconceptions or from the failure of the employer to make what are often very simple workplace modifications.

“I have been found to have a service-connected disability for purposes of receiving benefits related to my military service. Does this mean that I’m covered by the ADA?”

Well, it depends. The definition of disability under the ADA may differ from the definition used in other laws. For example, you might be considered to have a disability as a vet if you served in the armed forces, were honorably discharged, and have a service-connected disability, or if you’re receiving compensation, disability retirement benefits or pension because of a public statute administered by the Department of Veterans Affairs or a military department.

It’s possible that you may be considered as a disabled veteran and not be covered under the ADA. For example, if you get benefits based on a ten percent disability rating for a service-connected disability like, say, tinnitus which that ringing in the ears, but you’re not substantially limited in hearing or some other major life activity, don’t have a record of a substantial disability, then you may not be covered.

But it possible that you’ll meet the definition of both the disabled veteran and also the ADA’s definition of an individual with a disability. For example, if you have a complete loss of vision due to a combat-related injury, you are a disabled veteran and you are entitled to military benefits and you are also an individual with a disability under the ADA.

“Is an employer required to hire me over other applicants because I have a service-related disability?”

In most cases, the answer to that will be no. The ADA prohibits discrimination against a qualified individual with a disability because of the disability. But that means if you’re qualified for the job, the employer cannot refuse to hire you because you have a a disability or because you might need reasonable accommodation to perform the job. You’re considered qualified under the ADA if you’re able to meet the employer’s requirements for the job like education, training, experience, skills or licenses and you’re able to perform the jobs essential functions or fundamental duties with or without reasonable accommodation. Even if you’re qualified for a job, however, an employer may choose another applicant without a disability because that individual is better qualified.

Although it is not required to do so, an employer may decide to give a veteran with a service-connected disability a preference in hiring. In fact, federal agencies may use specific rules and regulations called special hiring authorities to hire individuals with disabilities outside the normal competitive hiring process and sometimes may be required to give preferential treatment to veterans including disabled veterans in making hiring, promotion and other employment decisions.

“During an interview, may an employer ask about my missing arm, why I’m in a wheelchair or how I sustained any other injury that I might have?”

No, even if your disability is obvious, an employer cannot ask you questions about when, where or how you were injured. However, where it seems likely you’ll need a reasonable accommodation to do the job, an employer may ask you if an accommodation is needed and if so, what type. In addition, an employer may ask you to demonstrate or describe how you might perform the job with or without an accommodation and that’s legal. For example, if the job requires you to lift objects weighing up to fifty pounds, the employer can ask whether you’ll need assistance or ask you to demonstrate how you would perform this task.

In the same way, if you voluntarily reveal that you have an injury or illness and an employer reasonably believes you’ll need an accommodation, it can ask what accommodation you’ll need to be able to do the job.

“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?”

No. The ADA does not require you to disclose that you have any medical condition on a job application or at an interview unless you’ll need a reasonable accommodation to participate in the application process, like maybe more time to take a test or permission to provide an oral instead of a written response. Some veterans who have service-connected disabilities, however, might choose to disclose that they have medical conditions such as PTSD or TBI because of symptoms they experience or because they’ll need a reasonable accommodation at work.

Once an employer makes a job offer, it might ask you questions about your medical condition and that’s alright. They might even require you to take a medical examination and that’s okay as long as it requires everyone else in the same job to answer the same questions and/or to take the same medical exams before starting work.

“Some applications ask me to indicate whether I am a disabled veteran. Is that legal?”

Yes, if the information is being requested for affirmative action purposes. An employer may ask applicants to voluntarily self-identify as individuals with disabilities or disabled veterans when the employer is either one, undertaking affirmative action because of a federal, state or local law even including a veterans preference law that requires affirmative action for individuals with disabilities or two, voluntarily using the information to benefit individuals with disabilities, including veterans with service-connected disabilities.

If an employer invites you to voluntarily self-identify as a disabled veteran, it must clearly inform you in writing, or orally if no written questionnaire is used, that one, the information is being requested as part of the employer’s affirmative action program, two providing the information is voluntary, three failure to provide it will not subject you to any adverse treatment, and four the information will be kept confidential and used on ly in a way that complies with the ADA.

“What types of reasonable accommodations may I want to request for the application process or on the job?”

Okay, I’ll give you some examples of types of accommodations that a person might need for the application process or on the job, but this isn’t an exhaustive list, this is just some examples of the common ones. Written materials in accessible format like large print or Braille or on a computer disc, extra time to complete a test for a person who has difficulty concentrating or has a learning disability or a traumatic brain injury, recruitment fairs, interviews, tests and training have to be held in accessible locations, modified equipment or devices like assistive technology that would let a blind person be able to use the computer or someone who is deaf or hard of hearing to use a telephone or a glare guard for a computer monitor used by a person with TBI, a one-handed keyboard for a person missing an arm or hand, physical modifications to the workplace like reconfiguring workspace including adjusting the height of a desk or shelves for a person in a wheelchair, permission work form home, leave for treatment, recuperation or training related to the disability, modified or part-time work schedules, a job coach who could assist an employee who has initially some difficulty learning or remembering job tasks, reassignment to a vacant position where a disability prevents performance of an employee’s current permission and where any reasonable accommodation in the current position would result in an undue hardship.

“How do I ask for reasonable accommodation?”

You simply have to indicate orally or in writing that you need an adjustment or a change in the application process or at work for a reason related to a medical condition. For example, if you have vision loss and can’t read standard print, you might need to inform the employer so that you can tell the employer that you need the application material in some other format like large print or on a computer disc or have it read to you. You don’t have to mention the ADA and you don’t have to say reasonable accommodation. The request also can be made by someone acting on your behalf, say a family member, a rehab counselor, a health professional or any other representative.

“What happens after I request a reasonable accommodation?”

A request for reasonable accommodation is the first step in an informal interactive process between you and the employer. The process will involve determining whether you have a disability as defined by the ADA, especially where this is not obvious or already know, and identifying accommodation solutions. An employer may also ask if you know what accommodation you need that will help you apply for or do the job.

There are lots of public or private resources to help identify reasonable accommodations for applicants and employees with particular disabilities. For example, the website for the Job Accommodation Network, JAN, provides a practical guide for individuals with disabilities on requesting reasonable and discussing accommodations and on finding the right job. JAN’s website is www.jan.wvu.edu/portals/individuals.htm.

“I’m not sure whether I’ll need a reasonable accommodation. If I don’t ask for one before I start working, can I ask for one later?”

Yes. You can request an accommodation at any time during the application process or when you start working, even when you didn’t ask for one when you were applying or after getting the job offer. Generally, you should ask for an accommodation when you know that there’s a workplace barrier preventing you from competing for or performing a job or having access to the benefits of employment. As a practical matter, it’s better to request a reasonable accommodation before your job performance suffers.

You can get more information about USERRA and the ADA by going to the EEOC’s website and looking for this publication which is the “Veterans with Service-Connected Disabilities in the Workplace and the ADA”. Also, the EEOC has published a very similar guide called “Veterans with Service-Connected Disabilities and the Americans with Disabilities Act: A Guide for Employers”. Both of those are available on the EEOC’s website.

As I mentioned before, in terms of USERRA, you can find out more about USERRA by going to the Department of Labor’s website at www.dol.gov/vets.

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The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers which are a network of ADA centers that provide training, technical assistance and materials on the ADA and other disability related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research. You can subscribe to the Disability Law Lowdown at our website at disabilitylawlowdown.com or on iTunes.



The Southwest and Rocky Mountain ADA Centers are part of a program of Independent Living Research Utilization at TIRR - Memorial Hermann in Houston, Texas, and is funded by the National Institute on Disability and Rehabilitation Research. If you have questions about disability law or would like to request materials or training, please call 1-800-949-4232. This podcast is protected by the Creative Commons Attribution Non-Commercial No-Derivative-Works 2.5 License. For more information and transcripts, visit www.ada-podcast.com.