EMPLOYER TIPS: KEY OBLIGATIONS IN
DISABILITY EMPLOYMENT
Alexandr
Chumachenko, Associate, AEQUITAS
It is indubitably a universal knowledge that persons
with disabilities, as a socially vulnerable stratum, need special treatment and
special attitude. Kazakhstan, like many
other countries, legislatively provides for the key guidelines to give the
disabled a special attitude of society and ensure the minimum guarantees to
which they are entitled. The state is also
establishing special requirements to, and conditions of, disability labor,
however, in practice, not all employers know their corresponding obligations. This is why we are going to dwell on the key
legislative requirements relating to disability labor.
Employment Quota
The Employment Law[1] sets, as a measure of
social protection against unemployment, quotas for employment of certain
categories of individuals. Such
categories include persons with disabilities who have no medical
contraindications to labor (i.e. those who are not prohibited to work in
principle). A similar requirement is
also provided for in the Law on Social Protection of Persons with Disabilities[2].
The setting of quota
means that the state establishes a minimum number of jobs to be ensured by the
employers to hire persons with disabilities.
The quota is set as a percentage of each employer's personnel, without
account for jobs involving heavy work or work with harmful or hazardous labor
conditions (such quota, though, accounting for the persons with disabilities
already working for the relevant employer).
The general quota size (from 2% to 4%) is determined by legislation, but
specific regional quotas for particular employers are set by local executive
authorities (Akimats).
The quota
requirement does not apply:
- 1) To organizations with less than 50 persons on payroll;
- 2) To public associations of persons with disabilities,
as well as organizations where the number of persons with disabilities is more
than 20% of the average annual number of employees; - 3)To organizations located in municipalities where there
are no unemployed working-age persons with disabilities that have no medical
contraindications to labor; and - 4)In legislatively established cases where special
conditions of hire to an office or procedure for appointment to a position are
defined.
Also, employers
that are in the process of winding-up (cessation of business), or staff reduction/jobs displacement, or experiencing a
drop in the volume of production, work or services resulting in the
deterioration of their economic situation, are allowed not to comply with the quota
requirement. In those cases, the local
executive authorities revise and adjust the established quota.
Employers are
allotted 6 months of the date of the quota approval by the local executive
authority to create the quota-required jobs.
Creation of
Special Jobs for Persons with Disabilities
Several
provisions of the Employment Law governing the creation of special jobs for
disabled employment are to become effective starting 1 January 2018. These provisions will obligate the employment
authorities to organize the creation of such jobs in order to ensure employment
of persons with disabilities.
The special jobs
will be created by employers (the legislation does not specify whether the
employers will in this case be exempt from disabled employment quotas, or the
jobs will be created in parallel with the quotas) on the basis of agreements
with employment authorities. That is, it
is presumably expected that the employers will be creating the special jobs on
a voluntary basis, or, as a minimum, will be able to negotiate with the authorities
the employer-favorable conditions. It
should be mentioned that employers will receive subsidies from the state budget
to create the special jobs.
Pursuant to the Employment
Law, a disabled person hired for a special job must be employed for a period
not less than 12 months from the date of such job creation.
Equipment
of a Disabled Employee's Workplace
When hiring a
disabled person, the employer is not just to provide his/her with a workplace,
but also to ensure that such workplace is equipped to meet the individual needs
of the employee with disability. The Labor
Code[3] requires that the parties
secure the workplace equipment conditions in the employment agreement.
The special
workplace equipment requirements are established for those disabled employees
who:
- 1) Have a complete loss of vision;
- 2)Have a complete loss of hearing; or
- 3)Are using a wheelchair.
- 1) It is disallowed to have disabled employees work
overtime; - 2) It is disallowed to apply the cumulative work time
recording to disabled persons of group 1, allowing for cumulative work time
recording for other disability groups only if they are not prohibited such regime
based on an occupational pathology expert commission's report; - 3) Disabled employees may be involved in night work only
on their written consent, unless they are prohibited such work for health
reasons according to a medical report; - 4) Disabled employees of group 1 cannot work on rotation from
the date of submission of the relevant medical report, while other disability
groups may work on rotation unless contraindicated for medical reasons; - 5) Employees with disabilities may be sent on business
trips, unless prohibited for medical reasons, however, they may refuse to
travel; - 6) Disabled employees of groups 1 and 2 are established a
reduced work time duration –not more than 36 hours per week; and - 7) Disabled employees of groups 1 and 2 are granted
additional paid annual leaves of at least 6 calendar day duration.
These
requirements are defined in the legislator-approved standards and stipulate,
beside the employer's acquisition of the special equipment for employee needs
(for example, computer blind-aid sets for blind workers), other measures, such
as a certain location (arrangement) of production equipment and furniture used
by the employee, compliance with certain sanitary requirements, sign language
interpreter, etc.
Labor Regime
When hiring
disabled employees, one should not forget that the Labor Code provides for some
indulgences and privileges regarding working time, rest periods and labor conditions,
namely:
Individual
Rehabilitation Program
In accordance
with legislation, the employer must compensate employees for the harm caused to
the employee's health in connection with the performance of his/her labor duties.
If the harm has entailed employee's health
problems with bodily dysfunction and, as a result, assignment of a disability
status to the employee, the employer would also be obligated to finance the rehabilitation
measures prescribed to the employee under an individual disability rehabilitation
program (employee's vocational training or retraining; creation of a special
workplace for the employee's employment purposes).
The individual
rehabilitation program is developed based on the results of a medical-and-social
examination of the affected employee and comprises an array of rehabilitation
actions, including medical, social and professional rehabilitation measures aimed
at the rehabilitation and compensation of the impaired and lost functions of
the organism.
According to the
rules for providing persons with disabilities with prosthetic and orthopedic
assistance and technical support (compensatory) equipment, as well as the rules
for providing persons with disabilities with special conveyance vehicles[4], the employees assigned
the disability status due to an on-the-job injury or occupational disease
caused through employer's fault are provided with wheelchairs, prosthetic and
orthopedic assistance, deaf and blind aids and compulsory hygienic means, in
accordance with the individual disability rehabilitation program.
***
It is presumed
that the employers are to meet all of the above requirements regardless of the
possible adverse implications to occur in case of their failing to fulfill or
improperly fulfilling these requirements.
Meantime, these implications may vary, ranging from disputes with
disabled employees to employer's administrative liability in cases stipulated
by legislation (e.g., in case the employer fails to meet the established
disabled jobs quota, the imposable fine may be up to 20 MCI[5]; failure to comply with
the requirements to conduct vocational training or retraining of employees with
disabilities or create special workplaces for their employment involves
administrative liability in the form of a fine of up to 600 MCI). However, a hope remains that, in exercising
the choice of whether or not and to what extent to observe the established
requirements, the employers would rather be guided not by the gravity of the
non-compliance adverse implications, but by the moral side of the issue – the
desire to create the most favorable conditions for the socially vulnerable
categories of population.
[1] Law No. 482-V of the Republic of
Kazakhstan "On Population Employment" dated 6 April 2016.
[2] Law No. 39-III of the
Republic of Kazakhstan "On Social Protection of Persons with Disabilities in
the Republic of Kazakhstan" dated 13 April 2005.
[3] Labor Code No. 414-V of the
Republic of Kazakhstan dated 23 November 2015.
[4] Both documents are approved by
the Order No. 26 of the Minister of Healthcare and Social Development of
the Republic of Kazakhstan dated 22 January 2015.