eLABORate: Important Developments for the Hiring and Employment of Disabled Workers

March 27, 2012

The EEOC Issues Guidance for Returning Veterans While the Department of Labor Proposes Rule Potentially Requiring Federal Contractors to Hire Quota of Disabled Workers
The Equal Employment Opportunity Commission ("EEOC") recently issued publications providing guidance for employers and veterans with a focus on disabled veterans' rights under the Americans with Disabilities Act ("ADA") and the Uniformed Services Employment and Reemployment Rights Act ("USERRA").[1] With approximately 1 million veterans scheduled to return home from duty within the next five years, this guidance is useful to both employers and veterans in understanding the expanded scope of the ADA after the ADA Amendments Act of 2008 ("ADAAA"), and how to handle certain service-related disabilities. 
As noted by the EEOC, 25% of recent veterans report a service-connected disability compared to approximately 13% of total veterans. The most common of these disabilities include missing limbs, spinal cord injuries, burns, post-traumatic stress disorder ("PTSD"), memory loss, and traumatic brain injuries. The EEOC publications provide a simple question and answer format to assist in understanding disabled veterans' rights.
The Guide for Employers applies the laws that most employers are already familiar with to unique situations presented by disabled veterans. For instance, as most employers are already aware, the ADA prohibits discrimination against an applicant or employee because he has a disability, a history of having a disability, or because the employer regards him as having a disability. A common disability suffered by veterans, which is perhaps not so common for civilians, is post-traumatic stress disorder ("PTSD"). Therefore, it is illegal for an employer to refuse to hire a veteran because he currently suffers, did suffer, or because the employer thinks he may have suffered from PTSD. 
 Employers are reminded that they may not refuse to hire veterans based on assumptions about their ability to do a job in light of the fact that a veteran has a disability rating from the U.S. Department of Veteran Affairs. Although the ADA uses different standards in defining "disability" than the U.S. Department of Defense and the VA, with the passage of the ADAAA, many more service-connected disabilities fit within the ADA's definition of disability. Indeed, the EEOC points out that a number of service-connected disabilities easily fit within the ADA, including "deafness, blindness, partially or completely missing limbs, mobility impairments requiring the use of a wheelchair, major depressive disorder, and PTSD." Therefore, most veterans with a military disability rating or a disability rating from the VA are most likely also covered by the ADA.     
Employers and veterans are also reminded that in determining whether a disability is "substantially limiting" under the ADA, after the passage of the ADAAA, there is no regard for mitigating measures, which for veterans, could include medications or prosthetic limbs. Moreover, impairments which are episodic or in remission (which may commonly include PTSD or epilepsy) are disabilities if substantially limiting when active. 
The EEOC instructs employers that they may ask applicants if they are "disabled veterans" when seeking to hire someone with a disability, but only if the applicant is given a chance to voluntarily self-identify when (1) undertaking an affirmative action plan because of a law requiring affirmative action for individuals with disabilities; or (2) when voluntarily using the information to benefit individuals with disabilities (i.e., implementing a voluntary affirmative action plan). The guidance also provides employers with information to be included in lawful requests for self-identification. Applicants cannot typically be asked about a disability, even if it is obvious, although employers may ask (within certain bounds) about whether an applicant might need a reasonable accommodation, and if so, what accommodations would be needed. 
The Guide for Employers provides suggestions for employers about where to post advertisements, as well as certain information that should or should not be included in these advertisements. For instance, the EEOC advises that a job announcement should not state that the applicant be in "excellent health," as this could discourage disabled veterans from applying. 
Although the Department of Labor is tasked with enforcing USERRA, the publications do briefly advise of the mandates of this law. Employers should be aware that USERRA applies to all employers, regardless of the number of employees, while the ADA's reach is limited to employers with at least 15 employees. Further, USERRA's affirmative may go beyond the ADA, as it requires employers to make "reasonable efforts" to assist a veteran who is returning to employment to become qualified for a job whether or not the veteran has a service-connected disability. This could potentially include providing training or retraining. 
Although the publications do not constitute new laws, employers should be aware that the job applicant pool in the U.S. will see significant changes over the next few years with the number of veterans returning from overseas. Employers should be familiar with their obligations under the ADA and USERRA, and the EEOC's publications provide useful guidance for the unique issues presented by disabled veterans.

DOL's Proposed "Utilization Goal" For Federal Contractors

As the EEOC was preparing its publications regarding disabled veterans, the Department of Labor was working on a proposed rule that could greatly impact companies that have contracts or subcontracts with the federal government. On December 9, 2011 the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor issued a notice of proposed rulemaking to inform the public of various changes to be made to Section 503 of the Rehabilitation Act, which governs companies that do business with the federal government. Some of the proposed changes simply incorporate and align with the ADAAA. One of the most significant changes, however, is the proposed expansion of the affirmative action program for federal contractors. Specifically, the Labor Department proposed a "utilization goal" of 7% for federal contractors, i.e., that 7% of each job group in these contractors' work force consist of disabled workers.

Although contractors are already forbidden from discriminating against the disabled in hiring, employers only have to show good faith and are not bound by a quota. While the Department states that this rule will not be a quota or a hiring ceiling, it may have the practical effect of establishing a quota for federal contractors. The Department did invite public comment on whether the use of a range from 4-10% would be a more appropriate goal, rather than a single percentage. A final rule has not yet been issued, but the public comment period ended on February 21, 2012. Therefore, companies that have contracts or subcontracts with the federal government should monitor this potential significant change in the law.
[1] The Guide for Employers may be found at the EEOC's website at http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm
The Guide for Veterans is located at
Should you have any questions concerning the notice requirement, please contact your Phelps Dunbar attorney.