• EEOC Issues Guidance Regarding the ADAAA and Returning Military Veterans
  • March 20, 2012 | Author: Christine T. Cossler
  • Law Firm: Walter & Haverfield LLP - Cleveland Office
  • The EEOC recently issued revised guidance regarding military veterans with disabilities in light of the amendments to the Americans With Disabilities Act ("ADAAA"). The EEOC's guidance includes a publication for employers as well as one tailored for military veterans. Both can be found on the EEOC's website, www.eeoc.gov. The thrust of the guidance is that many more returning military veterans are, in light of the amendments, entitled to protection under the ADAAA than previously. This has been true ever since the ADAAA amendments became effective in 2009, but the EEOC's guidance reiterates that point. A few of the key points directly excerpted from the guidance are set forth below.

    Guidance for Employers

    • "Although the ADA uses different standards than the U.S. Department of Defense and the [Veteran's Administration] VA in determining disability, many more service-connected disabilities will also be considered disabilities under the ADA than prior to the ADA Amendments Act. In fact, some service-connected disabilities, such as deafness, blindness, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, major depressive disorder, and [Post-Traumatic Stress Disorder] PTSD, will easily be concluded to be disabilities under the ADA."

    • "Even where employers do not specifically recruit veterans with 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 disability to perform a function in a way that is different from the way it is typically done."

    Guidance for Wounded Veterans

    • "Though it is not required to do so, a private employer may decide to give a veteran with a disability a preference in hiring. The ADA prohibits discrimination 'on the basis of disability.' . . . Even if you are qualified for a job, an employer may choose another applicant without a disability because that individual is better qualified."

    • "Even if your disability is obvious, an employer cannot ask questions about when, where, or how you were injured. However, where it seems likely that you will 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 describe or demonstrate how you would perform the job with or without an accommodation. For example, if the job requires that you lift objects weighing up to 50 pounds, the employer can ask whether you will need assistance or ask you to demonstrate how you will perform this task. Similarly, if you voluntarily reveal that you have an injury or illness and an employer reasonably believes that you will need an accommodation, it may ask what accommodation you need to do the job."

    The newly issued guidance does not impose new obligations beyond than those already in effect under the ADAAA. However, it is a good reminder of the existing obligations, and the guidance also provides insight into the EEOC's areas of focus.