Employing Disabled Persons
Related legislation:
Persons with Disability (Employment) Act (Chapter 210)
An introductory note:
Employing people with disabilities may involve a cost in terms of workplace adjustment and reduced productivity. However, it also entails considerable rewards. Disabled people tend to be among the most loyal employees, and to serve as an inspiration to co-workers. Irrespective of legal obligations, many companies undertake to employ disabled persons because they find it beneficial to have a diversified workforce and also as part of their Corporate Social Responsibility initiatives.
A disability is not necessarily an impairment to do particular jobs. Depending on the type of disability, a person may in some circumstances, be as qualified and able to do particular jobs as others who may not suffer from disability i.e. a wheelchair bound doctor.
1. What is the legal definition of a disabled person?
Article 2 of Chapter 210 of the Laws of Malta defines “person with disability” as a person, being over compulsory school age, who, by reason of injury, disease, congenital deformity or other physical or mental incapacity, is substantially handicapped in obtaining or keeping employment or in undertaking work on his own account, of a kind which apart from that injury, disease, deformity or incapacity would be suited to his age, experience and qualifications; and the word “disability”, in relation to any person, shall be construed accordingly.
2. What legal obligations exist to employ disabled persons?
L.N. 157 of 1995 states that two per cent of the work force have to be registered disabled persons. This is applicable for companies employing more than 20 persons.
3. What is the difference between a registered and a non-registered disabled person?
There are registered and non-registered disabled persons. Registered disabled persons are listed on an official register kept by the Employment and Training Corporation and may be eligible for social benefits. Yet there are also persons who suffer impairment due to disease ,injury, congenital deformity or other physical or mental incapacity who are not on the register of disabled persons. A substantial number of these are in employment.
4. Do the legal quotas include both registered and non-registered persons?
The law talks about persons registered as disabled. Article 15 (2) stipulates that an employer shall not at any time take, or offer to take, into his employment any person other than a registered person, if, immediately after the taking in of that person, the number of registered persons in his employment … would be less than his quota.
5. What provisions concerning the employment of disabled persons were announced in Budget 2015?
In the National Budget 2015, government has announced a series of measures aimed at increasing the employment of disabled persons. The measures mentioned consist of:
- Exemption for national insurance for employed disabled persons
- A tax credit of a maximum of €4,500 for each disabled person in employment
- Enforcing the legislation which stipulates that companies with more than 20 employees must have 2% of the labour force that are disabled.
- Companies who fail to abide by the 2% provision and who employ more than 20 persons will pay a ‘contribution’ of €2,400 for every person they should be employing up to a maximum penalty of €10,000 per annum.
- The ‘contribution’ will be introduced over a period of three years, with 33% in 2015, 66% in 2016, and 100% in 2017
- The funds collected will be administered by the Employment and Training Corporation, and used to set up and administer the Lino Spiteri Foundation. This foundation will use the funds to train and assist disabled persons to find employment.
6. Do disabled persons have different entitlements (sick leave, vacation leave, hours of work, pay etc.) than other employees?
A disabled person has the same entitlements of sick leave, vacation leave as other employees pro rata the number of hours that they work.
The hours of work and the rate of pay are the same as comparable employees unless there is a specific agreement and/or authorisation by the relevant authorities (KNPD, ETC?) whereby the salary and N.I. is subsidised by government through a scheme.
7. If a person becomes disabled during the course of his/her employment due to health issues, what are the legal obligations of employers?
An employer is not legally bound to retain employees who have exhausted their sick leave entitlement and are still deemed unfit for work, subject to provisions that exist in some collective agreements. Nevertheless, in practice, it is recommended that if possible, alternative duties are assigned to these employees. There are many positive examples of such good practices in Malta.
8. If a person becomes disabled during the course of his/her employment, what are the legal obligations of employers?
In the case where an employee suffers an occupational injury, the legal provisions governing injury at work apply. (see Chapter on Injury at Work).
9. Do employers have discretion to terminate the employment of a disabled person?
In cases of redundancy, the last in first out rule applies without distinction. There can be no discrimination against people suffering from disability vis-à-vis others who are performing the same duties with lower seniority.
Some schemes may oblige employers to employ disabled people for a definite period of time, or else on a trial basis after which the employer may decide whether to retain the disabled person in employment.
10. Can an employer terminate employment of a disabled person if the disability becomes worse and hinders the performance of assigned duties?
In cases of inability to perform, or reduced productivity, an employment can be terminated. In the case of disabled persons, it is advisable to seek professional advice from a competent specialist to determine the severity of the disability and the likelihood of improvement before taking further action.
11. How can an employer conduct a work organization assessment before employing disabled persons?
Apart from conducting a risk assessment an employer may engage the services of private professionals or the KNPD to determine any adjustments in the workplace that might be required before employing a disabled person. This would depend on the nature, the extent of the disability as well as the nature of the job.
