EEOC Guidance on Employing Disabled Veterans

The Equal Employment Opportunity Commission (EEOC) just issued two guides (one for employers and one for disabled veterans) addressing the Americans with Disabilities Act (ADA) and employment protections for veterans with service-connected disabilities.

The guides reflect legal changes made to ADA laws when the ADA was amended in 2008. These legal changes, according to the EEOC, made it “easier for veterans with a wide range of impairments – including those that are often not well understood – such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTD), to get needed reasonable accommodations that will enable them to work successfully.”  

The Guide for Employers explains how the ADA applies to recruiting, hiring and accommodating disabled veterans. The guide also explains the difference between protection for veterans provided by the ADA versus those protections provided by the Uniformed Services Employment and Reemployment Rights Act (USERRA).

For example, the Guide for Employers explains that:

• It is illegal for an employer to refuse to hire a veteran because he/she has PTSD, because he/she was previously diagnosed with PTSD, or because the employer assumes he/she has PTSD.
• An employer may not refuse to hire a veteran based on assumptions about the veteran’s ability to do a job because he/she has a VA disability rating (from the U.S. Department of Veterans Affairs).

The Guide for Employers also addresses whether and when an employer can inquire if an applicant for employment is a disabled veteran for affirmative action purposes (including veterans’ preferences) without violating the ADA.

In addition to the Guide for Employers, the Guide for Wounded Veterans educates veterans on their employment rights, including reasonable accommodation for disabilities. 

The EEOC states that three million veterans have returned from military service over the past decade and another one million are expected to return over the course of the next five years as Middle East military operations scale back. 

Recent veterans report high rates of service-connected disabilities — higher than rates veterans reported in the past. According to figures from the Bureau of Labor Statistics, about 25 percent of recent veterans report having a service-connected disability, as compared to about 13 percent of all veterans.

As a reminder, HRWatchdog previously blogged that the California Department of Veterans Affairs (CalVet) is working with employers and employees to help veterans take advantage of the state and federal benefits they may have earned through military service, including veterans’ disability benefits.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

CalChamber members can read more about USERRA in HRCalifornia's HR Library. Not a CalChamber member? Sign up for a 15-day Free Trial. 

Fired Cancer Patient Gets $846,300 Award

California's Department of Fair Employment and Housing recently announced an administrative award of $846,300 to a man fired because he had cancer. This is the agency’s largest ever award.

The sales manager was fired because his employer claimed that he wasn’t spending enough time on sales travel during the same time frame that he was still recovering from cancer.

Charles Wideman worked for Acme Electric Corporation as a western regional sales manager from 2004 to 2008. He developed kidney cancer in 2006 and prostate cancer in 2007. Wideman’s cancers required two surgeries and numerous outpatient appointments. He was granted time off for the surgeries and recuperation time off. 

Wideman returned after each operation, but requested an accommodation to limit his travel while undergoing additional cancer treatment. Acme Electric refused to grant or even acknowledge the requests to limit travel.

Instead, in December 2007, Wideman’s supervisor gave him an unfavorable performance evaluation, criticizing him for insufficient sales travel. In February of 2008, Acme Electric fired Wideman on the basis of the December performance evaluation. Acme Electric ignored the fact that Wideman’s performance since the December evaluation dramatically improved.

After a three-day hearing, the Fair Employment and Housing Commission found that Acme Electric violated the Fair Employment and Housing Act (FEHA) by:

• Failing to accommodate Wideman’s known travel limitations due to his cancers
• Failing to engage in a good faith, interactive process
• Discriminating against Wideman because of his disability
• Failing to take all reasonable steps to prevent discrimination from occurring.

Employers cannot discriminate against employees on the basis of disability. Further, under the FEHA, employers must reasonably accommodate employees with known disabilities. The duty to accommodate is an on-going obligation and requires a genuine effort to work with the employee to arrive at a workable reasonable accommodation. 

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

CalChamber members can use HRCalifornia’s Law Library to learn more about the reasonable accommodation requirement that employers must follow.  

EEOC Asks For Employer Input on Leave as a Reasonable Accommodation

The federal Equal Employment Opportunity Commission (EEOC) has invited public input concerning the use of leave as a form of reasonable accommodation for disabled employees.* 

At an EEOC meeting on June 8, the commission heard a wide range of views on employer and employee obligations regarding the use of leave. All witnesses testifying before the commission agreed on the need for clear and uniform guidance from the EEOC.

Under the Americans With Disabilities Act (ADA), a leave of absence can serve as a form of reasonable accommodation for a disabled employee. In some situations, a leave of absence beyond an employer’s permitted number of days off may be required.

Christopher Kuczynski, EEOC assistant legal counsel for ADA issues, told the commission that though many requests for leave can be handled under an employer's regular leave policies, reasonable accommodation issues arise when an employer would not ordinarily allow the leave — for example, by having "no fault" leave policies that result in automatic termination of employees after they have been on leave for a certain time. 

"These must be modified as a reasonable accommodation, absent undue hardship, if an employee with a disability needs additional leave," Kuczynski said.

The employer may have to modify existing workplace policies to reasonably accommodate the employee. According to EEOC Commissioner Victoria Lipnic, the question of how much leave and how to coordinate leave with an employer’s existing policies is “one of the most vexing issues for employers and employees.”  

Witnesses called for more detailed examples of situations when additional leave beyond an employer’s existing policies will be necessary, and also urged the EEOC to consider the view of smaller employers, many of which do not have spare staff.

The EEOC is holding open the comment period until June 23, 2011. Written comments may be mailed to:

Commission Meeting, EEOC Executive Officer

131 M Street, N.E.

Washington, D.C. 20507

Comments can be emailed to Commissionmeetingcomments@eec.gov.

All comments received will be made available to commission members and to commission staff working on the matters discussed at the meeting. Comments will also be placed in the EEOC library for public review.

Gail Cecchettini Whaley: Employment Law Editor/Staff Counsel, CalChamber

*CalChamber members can turn to HRCalifornia.com for a complete explanation of employer obgiations concerning reasonable accommodations for employees. 

Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.

Numerous Bills Mandating Health Care Benefits Before the Legislature

California’s Legislature may consider at least a dozen new bills* that require health plans to cover specific health care treatments, services, supplies or drugs:

• AB 72 (Eng; D-Monterey Park) mandates that all health policies cover acupuncture services.
• AB 154 (Beall; D-San Jose) mandates that all health policies cover an expanded list of mental health services.
• AB 171 (Beall; D-San Jose) mandates health plan coverage beyond medically necessary treatment for autism by requiring coverage of services that are educational, academic or custodial in nature.
• AB 185 (Hernandez; D-West Covina) mandates that all health insurance policies provide maternity coverage.
• AB 369 (Huffman; D-San Rafael) eliminates current cost controls and unravels consumer protections in the use of prescription pain medicines by eliminating the practice of step therapy.
• AB 1000 (Perea; D-Fresno) limits co-payments for one type of pharmaceutical: orally administered anti-cancer medications.
• SB 136 (Yee; D-San Francisco) mandates that health policies cover smoking cessation services.
• SB 155 (Evans; D-Santa Rosa) mandates that all health insurance policies provide maternity coverage.
• SB 166 (Steinberg; D-Sacramento) mandates health plan coverage beyond medically necessary treatment for autism by requiring coverage of services that are educational, academic or custodial in nature.

More information on these bills, and why the CalChamber opposes them, is available on the CalChamber web site.

By: Marti Fisher, CalChamber policy advocate

*CalChamber members receive regular updates on legislative and policy matters that affect California employers. Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.

ADA Amendments Act Regulations Finalized

Last week, the Equal Employment Opportunity Commission (EEOC) issued its final rule on implementing the ADA Amendments Act of 2008. That final rule is now published in the Federal Register and must be followed.

The EEOC published a Questions and Answers page to explain the ADAAA regulations to small business owners.

HRCalifornia members can use the Law Library’s Discrimination and Harassment section to learn about disabilities in the workplace. Not a CalChamber member? Test-drive HRCalifornia with a 15-day Free Trial.