Celebrating Memorial Day: 4 Legal Developments Affecting Veterans in the Workplace

Bearing the FlagWith Memorial Day upon us, employers should recognize the immense talent and skills that veterans and those in the military can bring to the workplace. When it comes to leadership and dedication, veterans can enrich a workforce, improve an employer’s public image and instill a sense of patriotism in the organization.

So as we get ready for the annual parades, here are four legal developments affecting veterans today.

Leave as an ADA Accommodation

A veteran who suffers from a disability as defined by the ADA, such as a missing limb, spinal cord injury, post-traumatic stress disorder (PTSD), hearing loss and other impairments, may be entitled to a reasonable accommodation if the accommodation permits the individual to perform the essential job functions and does not create an undue hardship for the employer. Reasonable accommodations may include:

• Physical changes to the workplace (i.e. to accommodate a wheelchair);
• Modified equipment/devices and technology (i.e., to accommodate blindness);
• Telecommuting;
• Modified or part time work schedules;
• A job coach or assistant; or
• Leave for treatment, recuperation or training.

The EEOC recently released specific guidance addressing leaves as a reasonable accommodation under the ADA. The guidance stresses that in determining whether a leave of absence is a reasonable accommodation, an employer should make a good faith effort to engage in the interactive process and consider the following factors:

• Amount and/or length of leave required;
• Frequency of the leave;
• Whether the days on which leave may be taken are flexible; and
• Whether the need for intermittent leave is predictable or unpredictable.

The guidance states that even if an employer does not offer leave as an employee benefit, or an employee is ineligible or has exhausted his or her leave, an employer must consider providing unpaid leave as a reasonable accommodation to an employee with a disability unless it would impose an undue hardship on the employer’s operations or finances.

The EEOC also warns against policies requiring an employee to return to work at 100 percent capability as this may violate the ADA by failing to consider an employee’s ability to perform the essential functions of the job with accommodations, such as additional leave under the ADA.

DOL Launches Veterans Employment Center

On May 2, the Department of Labor’s (DOL) Veterans’ Employment and Training Service initiated an online resource for both employees and employers aiming to increase the employment of veterans and their spouses by consolidating various resources such as job banks, state employment offices and other industry websites into a single website. Among other things, the site provides a free hiring tool kit and step-by-step guidance for an employer to hire a veteran. It also allows employers to upload available openings and job descriptions to job banks directed at veterans.

“There are many resources for veterans seeking employment and for those employers eager to hire veterans, but it’s often difficult for both groups to know where to start,” said Assistant Secretary of Labor for Veterans’ Employment and Training Mike Michaud. “Veterans.gov brings those resources together in one place, making it an effective first stop on the path to meaningful employment.”

Veterans Preference Laws

Veterans preference laws have spread rapidly in the past two years as almost half of the states have passed such laws. Under veterans preference laws, a private employer is permitted to provide otherwise qualified veterans or sometimes their spouses with a preference when it comes to hiring and promotions.

Some laws even specify a veterans preference when an employer conducts a reduction in force. The laws specify that using a veterans preference and providing preferential treatment of this kind does not violate state or local equal employment opportunity laws and antidiscrimination protections. An employer should be sure to review their state law to see if such a law is in effect.

State USERRA Expansion

Under USERRA, an employer may not discriminate against those in the military based on their military obligations and such individuals are provided with job protection and reinstatement rights if they leave their civilian jobs, voluntarily or involuntarily, to serve the uniformed services, the reserve forces or in the state national guards. State counterparts to USERRA also require employers to make a reasonable effort to assist veterans in returning to employment and to become qualified to perform the duties of the position the individual would have held but for military service regardless of whether the veteran has a service-connected disability.

A significant number of states have expanded the reach of these USERRA laws to provide job protection to individuals who serve in the national guard of another state. Thus, an employer as well as supervisors and those with managerial authority should make sure to provide veterans, and those taking leave for service in the military or national guard, with reinstatement rights and job protections. Further, an employer should make sure to implement and enforce military leave policies.

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