Employment Considerations for Disabled Veterans
For service members who have sustained disabling injuries in the line of duty, two laws offer protection from employment discrimination based on their physical or mental impairments. The American with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA) ensure that veterans both disabled and able-bodied are guaranteed the opportunity to work.
How the ADA Applies to Service Members
The ADA is an equal opportunity law that that bans employers from discriminating against workers or job applicants based on their disabilities or perceived disabilities. The ADA defines “disability” as a physical or mental impairment that limits one or more major life activity like eating, sleeping, speaking, moving, reading, hearing, concentrating or working.
Under the ADA, employers cannot discriminate against disabled workers or job applicants in hiring, firing, promotion or compensation decisions. This includes discrimination against what the employer perceives as a disability or issue associated with the disability, like increased insurance costs or lots of lost work days.
Additionally, the ADA requires employers make reasonable accommodations for disabled employees as long as they do not cause the employer undue hardship. For example, an employer may accommodate a worker’s injury by allowing him or her to bring a service animal to work, provide modified equipment like one-handed keyboards and a flexible work schedule for an employee being treated for Post-Traumatic Stress Disorder (PTSD) or a spinal injury.
The ADA does not require disabled workers to disclose their condition if they feel comfortable performing their job duties without accommodations. For example, a returned veteran suffering from PTSD does not need to disclose his or her condition if he or she does not want or need accommodations at work.
How USERRA Helps Protect Veterans’ Right to Work
Another piece of legislation protects veterans’ right to return to work after active duty. The Uniformed Services Employment and Reemployment Rights Act, or USERRA, protects the jobs and benefits of veterans and Reserve service members.
Like the ADA, USERRA extends employment discrimination protections to disabled veterans. The law requires that employers make a reasonable effort to accommodate disabled veteran workers. It also allows veterans convalescing from injuries sustained while on duty up to two years from their date of completion of service to return to work or apply for reemployment.
After returning stateside, veterans have up to 90 days to return to their previous jobs. Those who have served less than 31 days must return immediately, while those who served between 30 and 180 days have 14 days from being released from service to return to work. Those with over 180 of service have up to 90 days to return to work.
Additionally, USERRA provides service members called to military duty are able to take up to a five-year absence from their jobs without fear that their job will be gone when they return home, with a few exceptions. Service members whose initial enlistments are longer than five years are not eligible for the protection, nor are Reservists or Guard members who participate in periodic training. Those on involuntary active duty extensions or recalls, such as those issued in a national emergency, are also not eligible for the five year protection period.
When service members return to work, provisions in USERRA require employers to consider veterans as senior as they would have been if they did not have a gap in their employment due to military duty. It also requires employers to provide training to bring returning veteran workers up to speed on new developments at work.
The ADA and USERRA protect disabled veterans returning to work after being injured in the line of duty. If you have been injured in combat while overseas, please contact an experienced employment law attorney who can help you understand how the ADA or USERRA protect your right to work.