As federal government contractors know, employers generally may not ask for medical information from applicants prior to making a job offer. However, they may do so for affirmative action purposes. An employer, therefore, may ask applicants to voluntarily self-identify as individuals with disabilities or "disabled veterans" when the employer is:
- 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
- Voluntarily using the information to benefit individuals with disabilities, including veterans with disabilities.
An employer also may ask organizations that help find employment for veterans with disabilities whether they have suitable applicants for particular jobs and may access websites on which veterans with disabilities post résumés or otherwise express interest in employment.
If an employer invites applicants to voluntarily self-identify, the employer must indicate clearly and conspicuously on any written questionnaire used for this purpose, or state clearly (if no written questionnaire is used), that:
- The information requested is intended for use solely in connection with its affirmative action obligations or its voluntary affirmative action efforts; and
- The specific information is being requested on a voluntary basis, it will be kept confidential in accordance with the ADA, refusal to provide it will not subject the applicant to any adverse treatment, and it will be used only in accordance with the ADA.
Information collected for affirmative action purposes must be kept separate from the application to ensure that confidentiality is maintained.
Opening door to disabled vets
The Americans with Disabilities Act requires employers to ensure that online job announcements, recruiting information, and application processes are accessible to individuals with disabilities, including applicants who have service-connected disabilities.
There are a number of steps that an employer may take to recruit and hire veterans with disabilities, such as:
- Stating on a job advertisement or vacancy announcement that it is an equal opportunity employer and that individuals with disabilities, including “disabled veterans” or veterans with service-connected disabilities, "are encouraged to apply";
- Making written recruiting materials, such as application forms and brochures, available in alternate formats (e.g., Braille, large print, etc.), or assisting veterans with disabilities in completing application materials when necessary;
- Sending vacancy announcements to, and asking for referrals from, government, community, military organizations, and One Stop Career Centers that train and/or support veterans with disabilities;
- Posting advertisements and vacancy announcements in publications for veterans
- Attending job fairs and using online resume databases that connect job-seeking veterans with civilian employers;
- Surveying other employers to learn about their successful outreach efforts.
Employers should also ensure there is nothing in a job announcement or on an application form that would discourage anyone with a disability from applying. For example, employers should not state in vacancy announcements that applicants must be in “excellent health” or describe how a function must be performed (e.g., “requires extended standing”) but, instead, should describe the actual function to be performed (e.g., "requires moving objects that weigh more than 50 pounds"). Often, reasonable accommodations are available that will allow a veteran with a disability to perform a function in a way that is different from the way it is typically done.
While not all veterans with service-connected or other disabilities will need an accommodation or require the same accommodation, the following are examples of accommodations that some veterans may need to apply for or perform a job:
- Written materials in accessible formats, such as large print, Braille, or on computer disk
- Recruitment fairs, interviews, tests, and training held in accessible locations
- Modified equipment or devices (e.g., assistive technology that would allow a blind person to use a computer or someone who is deaf or hard of hearing to use a telephone; a glare guard for a computer monitor used by a person with a traumatic brain injury; a one-handed keyboard for a person missing an arm or hand)
- Physical modifications to the workplace (e.g., reconfiguring a workspace, including adjusting the height of a desk or shelves for a person in a wheelchair)
- Modified or part-time work schedules
- Modification of supervisory methods, which may include breaking complex assignments into smaller, separate tasks, adjusting methods of communication (e.g., giving instructions in writing rather than orally), or providing some additional feedback or guidance
- Reassignment to a vacant position where a disability prevents performance of the employee’s current job, or where accommodating the employee in the current job would result in undue hardship
The Job Accommodation Network (JAN) provides a practical guide for employers on reasonable accommodation, as well as information about accommodations for specific disabilities, including one on “Accommodating Service Members and Veterans with PTSD.” See JAN’s website at www.askjan.org.
Discussing reasonable accommodation
During the application process, an employer may explain what the hiring process involves (e.g., an interview, timed written test, or job demonstration) and ask all applicants whether they will need a reasonable accommodation to participate in any part of the process. In addition, if an employer reasonably believes that a veteran with an obvious service-connected disability (e.g., a veteran who is blind or missing a limb) who is applying for a particular job will need a reasonable accommodation to do that job, the employer may ask whether an accommodation is needed and, if so, what type.
Once a veteran with a disability has started working, an employer may ask whether an accommodation is needed when it reasonably appears that the person is experiencing workplace problems because of a medical condition. Because many veterans may not view their service-related injuries as disabilities, they may not ask, or know that they are entitled to ask, for a reasonable accommodation.
As a result, it may be critical for the employer to initiate a conversation with a veteran who is experiencing problems to determine an appropriate accommodation. Working together, the employer and veteran should identify what the veteran cannot do and then discuss ways to address any identified performance issue(s).