A 2018 analysis by the Rand Corporation shows that 2.77 million service members have served on 5.4 million deployments across the globe since September 11, 2001. Many of those deployments came as part of campaigns in the Middle East, including Operation Iraqi Freedom, Operation Enduring Freedom, Operation New Dawn, Operation Freedom’s Sentinel, and Operation Inherent Resolve (the campaign against ISIS/ISIL).
More than 53,000 military personnel have been wounded in action during post-9/11 conflicts, according to the Congressional Research Service. Many Iraq and Afghanistan veterans face a lifetime of disability due to the physical and psychological injuries they sustained in the war zones. At least 970,000 veterans have some degree of officially recognized disability as a result of the wars, according to Brown University. Many veterans struggle to remain employed or maintain relationships with others as a result of their physical or emotional trauma.
Thousands of military personnel around the globe come off active duty each year. They return to the jobs they held before or begin looking for new employment. With about 29 percent of veterans reporting that they suffer from a service-connected disability, the question of how to protect these veterans’ workplace rights arises. The goal of this post is to help answer some of the questions disabled veterans and their families may have regarding these rights.
Yes. Two laws provide important protections for these individuals. They are the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Americans with Disabilities Act (ADA).
Enacted in 1994, USERRA explains the rights and responsibilities of uniformed service members and their civilian employers. It is designed to ensure that people who are serving or have served in the military (including National Guard and Reserves):
Essentially, USERRA protects the job rights of those who leave their civilian jobs to perform military service, then return from duty and need to continue their civilian employment. USERRA is enforced by the Department of Labor and the Department of Justice.
The basic rule of the ADA is that employers cannot treat applicants or employees differently because of a disability. This applies to all aspects of employment – hiring, promoting, assigning tasks, training, firing, and more. For veterans, one example would be PTSD. It is illegal under the ADA for an employer to refuse to hire a veteran because he was diagnosed with PTSD. It is also illegal for the employer to assume that a veteran has PTSD without a diagnosis. Finally, the ADA says that employers must provide “reasonable accommodation” for disabled applicants and employees. An example would be making sure all parts of the employer’s building are accessible to everyone, including a veteran in a wheelchair.
In most ways, veterans are not treated differently under the ADA than non-veterans. You are protected so long as 1) you are considered an individual with a disability and 2) you are qualified for the job.
You are considered an individual with a disability if:
You are qualified for the job if:
The ADA was amended in 2008 to make it easier for people to qualify for protection. “Major life activities” now includes things like walking, seeing, hearing, and concentrating, plus the operation of major bodily functions, such as functions of the brain. Many service-connected disabilities clearly qualify as disabilities under the ADA, including blindness, deafness, amputation, major depressive disorder, and PTSD.
The phrase “substantially limiting” is a broad term. An impairment can be considered substantially limiting even if it does not prevent or severely limit your ability to perform a major life activity. When determining whether your impairment is substantially limiting, we look at how it affects you in the absence of medication, prosthetics, or other mitigating measures. Episodic impairments (such as epilepsy) can qualify as disabilities if they substantially limit you.
Overwhelmingly the answer is yes, though not always. The ADA uses different standards for determining disability than the Department of Defense or VA use. Occasionally these different standards cause complications in deciding whether a veteran is covered by the ADA.
Are employers required to hire disabled veterans over other applicants?
No. However, a private employer may give disabled veterans a preference when hiring. Remember, the ADA prohibits discrimination based on disability; it does not require employers to favor the disabled. This means an employer cannot refuse to hire you because of your disability, but the employer cannot be forced to hire you. For example, you may be disabled and qualified for a job, but another applicant could have better qualifications than you; in this situation, the employer can hire the person with better qualifications.
No. An employer is only permitted to ask you if you can perform the job duties with or without accommodation. Even if you have an obvious disability, the employer is not allowed to ask questions about how or when you were hurt.
There is one important distinction to make, however, which is the distinction between questions about your disability itself and questions about your ability to do the job.
If it seems likely that the employer will need to provide you with reasonable accommodation, the employer can ask certain questions. For example, you could be asked whether you need accommodation and if so, what kind. Further, the employer could ask you to demonstrate how you could perform the job. For example, if you are applying for a job that requires you to be able to lift 40 pounds, the employer may ask whether you would need assistance or request that you show him/her how you would accomplish the task yourself. These questions/demonstrations have nothing to do with your veterans’ status; rather, they are about your ability to do the job and could be asked of any other applicant, whether disabled or not.
Assuming the employer is asking this question for affirmative action reasons, then yes, it is a legal question. It has become very common for employers to ask this question, and it is generally acceptable for them to do so.
If the application asks you to voluntary self-identify as a disabled veteran, the application must clearly state four things:
Yes, you can ask for one during the hiring process or at any time during your employment. Reasonable accommodation means assistance in completing job duties, or changing the job’s duties, to allow you to perform the job. The ADA makes it possible for you to receive these accommodations provided accommodating you will not place a hardship on the employer. Here are some reasonable accommodations that pop up in the workplace each year:
You simply have to indicate, verbally or in writing, that you require an adjustment in the application process or at work due to a medical condition. You do not have to mention the ADA, nor do you have to use the phrase “reasonable accommodation.” A person acting on your behalf can also make the request for you (could be a family member, doctor, counselor, or someone else).
An example request could be as simple as this: “I have vision loss and have trouble reading standard print. Please provide me with an application in a different format, such as larger print or on a computer disk.”
Once your request is made, think of the rest of the process as an ongoing process between you and the employer. If your disability is not obvious (e.g. if you aren’t in a wheelchair, for example), the process will include determining whether you have an ADA-covered disability and, if so, what solutions will work for you. There is a great website called Job Accommodation Network (JAN) that provides comprehensive information on requesting accommodations and working with employers. Please spend some time visiting the JAN website: https://askjan.org/.
If you need more information on the ADA and USERRA because you are interested in understanding your employment rights and more, you can visit these important websites for more information:
ADA
USERRA
You might also require help from experienced members who understand what USERRA requires, which is where this informative organization comes into play:
FEHA
Through these particular websites, you can find various careers that will help employers reach out to veterans. One Stop Career Centers specifically serves the needs of veterans who are seeking work:
If you are a veteran who is need of special training programs due to a service-related injury, this resource might be helpful to you:
These other resources for veterans with service-related injuries offer networks and resources that can guide you in the right direction:
This guideline will help you gain a better understanding of the rights of individuals who need reasonable accommodations in the workplace, as well as provide examples of such accommodations that could be made for you to qualify for a certain position:
JAN provides many resources for both employers and those struggling with disabilities, offering you extensive information that could be useful to you:
Lastly, CAP offers technology and services to those who have disabilities in the workplace and more:
