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Editorial

EMPLOYER TIPS: KEY OBLIGATIONS IN DISABILITY EMPLOYMENT

July 2017 - Employment. Legal Developments by AEQUITAS.

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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.
  • 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:

    • 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.

    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.

    [5] In 2017, the monthly calculation index is KZT 2,269.

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