Understanding Your Employment Rights Under the Americans with Disabilities Act (ADA)

Image

In recent years, the percentage of veterans who report having service-connected disabilities (i.e., disabilities that were incurred in, or aggravated during military service) has risen. Common injuries experienced by veterans include missing limbs, spinal cord injuries, burns, post traumatic stress disorder (PTSD), hearing loss, traumatic brain injuries, and other impairments. This guide is intended to answer questions you may have about your rights as an injured veteran, now that you have left the service and are returning to a civilian job or seeking a new job.

What protections does the ADA provide?

Title I of the ADA prohibits an employer from treating an applicant or employee unfavorably in all aspects of employment -- including hiring, promotions, job assignments, training, termination, and any other terms, conditions, and privileges of employment -- because he has a disability, a history of having a disability, or because the employer regards him as having a disability. That means, for example, that it is illegal for an employer to refuse to hire a veteran because he has PTSD, because he was previously diagnosed with PTSD, or because the employer assumes he has PTSD. The ADA also limits the medical information employers may obtain and prohibits disability-based harassment and retaliation.

Finally, the ADA provides that, absent undue hardship (significant difficulty or expense to the employer), applicants and employees with disabilities are entitled to reasonable accommodation to apply for jobs, to perform their jobs, and to enjoy equal benefits and privileges of employment (e.g., access to the parts of an employer's facility available to all employees and access to employer-sponsored training and social events).

Section 501 of the Rehabilitation Act applies the same standards of non-discrimination and reasonable accommodation as the ADA to Federal Executive Branch agencies and the United States Postal Service. Documents explaining Title I of the ADA and the Rehabilitation Act can be found on EEOC's website at www.eeoc.gov.

I was injured during active duty but don't think of myself as "disabled." How do I know if I am protected by the ADA?

You are protected if you meet the ADA's definition of disability and are qualified for the job you want or hold. The ADA defines an "individual with a disability" as a person who

1. has a physical or mental impairment that substantially limits one or more major life activities;
2. has a record of such an impairment (i.e. was substantially limited in the past, such as prior to undergoing rehabilitation); or
3. is regarded, or treated by an employer, as having such an impairment, even if no substantial limitation exists.

You are considered qualified if you are able to meet an employer's requirements for the job, such as education, training, employment experience, skills, or licenses, and are able to perform the job's essential or fundamental duties with or without reasonable accommodation.

An impairment need not prevent or severely or significantly restrict your performance of a major life activity to be considered substantially limiting; the determination of whether an impairment substantially limits a major life activity must be made without regard to any mitigating measures that you may use to lessen your impairment's effects; and impairments that are episodic or in remission are considered disabilities if they would be substantially limiting when active.

I am not sure whether I will need a reasonable accommodation. If I don't ask for one before I start working, can I still ask for one later?

Yes. You can request an accommodation at any time during the application process or when you start working even if you did not ask for one when applying for a job or after receiving a job offer. If you are already receiving a reasonable accommodation, you may also request a different or additional accommodation later if your disability and/or the job changes, or if another accommodation becomes available that will help you.

Generally, you should request an accommodation when you know that there is a workplace barrier that is preventing you from competing for or performing a job or having equal access to the benefits of employment. As a practical matter, it is better to request a reasonable accommodation before your job performance suffers.

During a job interview, may an employer ask about my amputation, why I am in a wheelchair, or how I sustained any other injury I may have?

No. 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. 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.

Do I have to disclose an injury or illness that is not obvious during an interview or indicate on a job application that I have a disability?

No. The ADA does not require you to disclose that you have any medical condition on a job application or during an interview. However, if you will need a reasonable accommodation to participate in the application process, such as more time to take a test or permission to provide oral instead of written responses, you must request it. Additionally, some veterans with service-connected disabilities may choose to disclose that they have medical conditions, such as PTSD or a traumatic brain injury, because of symptoms they experience or because they will need a reasonable accommodation at work.

Once an employer makes a job offer, it may ask you questions about your medical conditions, and perhaps even require you to take a medical examination, as long as it requires everyone else in the same job to answer the same questions and/or take the same medical examination before starting work.

How do I ask for a reasonable accommodation?

You simply have to indicate -- orally or in writing -- that you need an adjustment or change in the application process or at work for a reason related to a medical condition. For example, if you have a vision loss and cannot read standard print, you would need to inform the employer that you need the application materials in some other format (e.g., large print or on computer disk) or read to you. You do not have to mention the ADA or use the term "reasonable accommodation." Someone acting on your behalf, such as a family member, rehabilitation counselor, health professional, or other representative, also can make the request.

What types of reasonable accommodations may I want to request for the application process or on the job?

The following are examples of types of accommodations that you may need for the application process or while on the job:

• extra time to complete a test if you have difficulty concentrating or have a learning disability or traumatic brain injury (TBI)
• leave for treatment, recuperation, or training related to your disability
• a modified or part-time work schedule
• modification of supervisory methods, such as having a supervisor break complex assignments into smaller, separate tasks, provide some additional feedback or guidance on a task, or adjust methods of communication (e.g., give written rather than oral instructions for completing certain tasks).

Some applications ask me to indicate whether I am a "disabled veteran." Is this legal?

Yes, if the information is being requested for affirmative action purposes. An employer may ask applicants to voluntarily self-identify as individuals with disabilities or "disabled veterans" when the employer is: (1) undertaking affirmative action because of a federal, state, or local law (including a veterans' preference law) that requires affirmative action for individuals with disabilities; or (2) voluntarily using the information to benefit individuals with disabilities, including veterans with service-connected disabilities.

If an employer invites you to voluntarily self-identify as a disabled veteran, it must clearly inform you in writing (or orally, if no written questionnaire is used) that: (1) the information is being requested as part of the employer's affirmative action program; (2) providing the information is voluntary; (3) failure to provide it will not subject you to any adverse treatment; and (4) the information will be kept confidential and only used in a way that complies with the ADA.

If I have a military disability rating or a disability rating from the VA, does that mean I am also covered by the ADA?

Yes, you are probably covered even though the ADA uses different standards than the U.S. Department of Defense and the U.S. Department of Veterans Affairs (VA) in determining disability.