Two sections of U.S. federal law significantly affect the rights of employees with disabilities. These are the Americans with Disability Act (ADA), which affects all employees and candidates; and the Uniformed Services Employment and Reemployment Rights Act (USERRA), which affects U.S. military veterans.

In 2009, the ADA was expanded by the Americans with Disabilities Amendments Act (ADAAA). The USERRA goes further than the amended ADA.

The ADA prevents employers from discriminating against qualified persons with disabilities when engaging in employment practices, including hiring and promoting. The ADA applies to private and government employers with 15 or more employees.

The USERRA applies to all employers. The USERRA requires an employer to make reasonable efforts to assist a veteran with a disability returning to employment to become qualified for a job. The disability does not have to be connected to the veteran’s service.

If a veteran has a condition that is recognized as a disability under the ADA, the veteran can be protected under both the ADA and the USERRA. It can be difficult to understand where these laws intersect. The USERRA does not adopt the ADA’s definition of disability. A veteran can have a condition that classifies them as a “disabled veteran.” They may receive benefits from the Department of Veterans Affairs for the condition. Yet typically, the condition must prove significantly debilitating to the veteran to be considered as a disability under the ADA.

Before the ADAAA was passed, a disability was generally considered to be a condition that substantially limited a major life activity of an individual. The ADAAA pushed the U.S. Supreme Court to define disability more broadly. Now the Court considers impairments that are episodic or in remission, which would substantially limit major life activities when they are active, as disabilities. Such impairments include diabetes, cancer, epilepsy, multiple sclerosis, and muscular dystrophy.

A case decided in June of 2011 in the Northern District of California indicated that as a veteran recovers from an illness or injury that severely affects their ability to work, they are recognized under the USERRA and ADA as having a disability. In this case, Kirbyson v. Tesoro Refining & Marketing Co. et al., Kirbyson alleged that he had two foot conditions that negatively affected his ability to take certain positions. The judge ruled that Kirbyson was entitled to a jury determination as to whether his employer made reasonable efforts to accommodate his disability.