Responding to the pandemic, the government has put in place measures to support employers (the so-called Anti-Crisis Shields, implemented in three phases this spring). The question than many employers who employ disabled people are asking is – can you combine the two forms of support?

The short answer is yes, provided the employer has written permission from the starosta, the poviat (or county-level) administrator, and – crucially – that all the paperwork is in place, and correct. The employer also needs to check beforehand that there are no obstacles to combining both forms of subsidy.

Combining support from the Guaranteed Employee Benefits Fund (Fundusz Gwarantowanych Świadczeń Pracowniczych – FGŚP) with wage subsidies from PFRON (Państwowy Fundusz Rehabilitacji Osób Niepełnosprawnych)

Wage subsidies from PFRON for disabled employees are one of the forms of support for employers [who hire such persons] pursuant to Article 26a of the Act of 27 August 1997 on Vocational and Social Rehabilitation and Employment of Disabled Persons (i.e. Journal of Laws of 2020, item 1325, hereinafter the Rehabilitation Act).

Responding to the pandemic the government enacted the so-called Anti-Crisis Shields (Acts of 31 March 2020, 16 April 2020, 14 May 2020 and 19 June 2020) amending the Act of 2 March 2020 on special arrangements for preventing, counteracting and combating COVID-19, other infectious diseases and crisis situations caused by them (Journal of Laws of 2020, item 374, as amended, hereinafter: Act COVID-19). In light of the above, employers want to know whether they can combine the assistance offered  from FGŚP with wage subsidies for disabled employees from PFRON. 

Wage subsidies for disabled employees from PFRON

Wage subsidies from PFRON for disabled employees are one of the forms of support for employers who hire disabled persons, both in the protected (Sheltered Work Enterprise: Zakłady Pracy Chronionej - ZPChr) and the open labour market. The Act on Rehabilitation sets forth the prerequisites for obtaining subsidies, also having regard for the rules on state aid specified in Commission Regulation (EU) No. 651/2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty.

According to Article 26a of the Rehabilitation Act, the following are entitled to apply for a wage subsidy for disabled employees:

• An employer running a sheltered work place;
• An employer with at least 25 employees (full-time equivalent or FTE) and achieving an employment rate of at least 6% for disabled persons [in other words 1.5 disabled FTEs out of each 25 FTEs in total]
• An employer with fewer than 25 employees (FTE).

This means that the subsidy is only available for disabled persons employed pursuant to an employment contract, appointment, selection, nomination or cooperative contract of employment. Outworkers are also considered to be employees of a sheltered workplace.

Depending on the business sector, the following should be submitted with the application for the subsidy:

• Wn-D – a request for payment of a monthly salary subsidy for disabled employees;
• INF-D-P – monthly information on the salaries, employment, degrees and type of disability of disabled employees;
• INF-O-PP –  information form presented when applying for aid other than agricultural or fisheries aid, de minimis aid or de minimis agricultural or fisheries aid, or
• INF-O-PR –  information form presented when applying for agricultural or fisheries aid other than de minimis aid in the agriculture and fisheries sector.

Article 17 of the aforesaid Act of 31 March 2020  introduced new wage subsidy amounts to ensure the continuity of employment of disabled persons by partially mitigating the effects of increasing the minimum wage for people with severe and moderate disabilities, with particular emphasis on people with special illnesses.

In accordance with the regulations, from 1 April 2020, the maximum amounts of funding are as follows:

• PLN 1,950 – for persons with a significant degree of disability (was PLN 1,800);
• PLN 1,200 – for persons with a moderate degree of disability (was PLN 1,125);
• PLN 450 – for persons with a mild degree of disability (unchanged amount).

In relation to disabled persons who have been diagnosed as having a mental illness, mental retardation, total developmental impairment or epilepsy and blind persons, the aforesaid amounts shall be increased by:

• PLN 1,200 in the case of disabled persons classified as having a significant degree of disability (was PLN 600);
• PLN 900 in the case of disabled persons classified as having a moderate degree of disability (was PLN 600);
• PLN 600 in the case of disabled persons classified as mildly disabled (amount unchanged).

The increased amounts are due from the reporting period for April 2020 onwards.

Possibility of combining assistance

Currently , employers who have experienced a decrease in turnover as a result of COVID-19 may apply to the provincial or county labour offices (Wojewódzki Urząd Pracy/Powiatowy Urząd Pracy) for appropriate funding for their employees. However, employers are not entirely clear to what extent they can combine the assistance from the Anti-Crisis Shield under the FGŚP funding with wage subsidies for disabled employees from PFRON.

Combining Anti-Crisis Shield measures that constitute state aid with subsidies from PFRON

Pursuant to Article 15 zzb COVID-19 Act, a county administrator (starosta) may award an entrepreneur part of the costs of employees' salaries and social security contributions due from those salaries in the event of a decrease in turnover as a result of COVID-19.

The aid is based on the Communication from the Commission – Temporary framework for aid measures to support the economy in the context of the ongoing COVID-19 epidemic (2020/C 91 I/01) (OJ EU C 91I, 20.03.2020, p. 1). It sets out additional temporary state aid measures that can be approved by the Commission within a very short period of time after their notification by the Member State. The temporary framework for state aid is intended to enable Member States to ensure that their businesses, especially SMEs, have sufficient liquidity and access to finance to enable them to cope with the current situation and maintain their economic activity during and after the COVID-19 epidemic.

The Act of 14 May 2020 introduced Article15zze^1. specifying the anti-crisis measures, to confirm whether wage subsidies for disabled employees can be combined with assistance from the funds from the county administrator.

According to Article 15zze, an employer that benefits from the wage subsidy for a disabled employee in the part not subject to subsidy on the basis of that Act, may receive part of the costs of employees' salaries and social insurance contributions due from those salaries. This means that a subsidy from the county administrator cannot be used to cover the same parts of the wages or result in a subsidy in amount higher than the remuneration of a given employee covered by these forms of support.

Combining Anti-Crisis Shield Measures that do not constitute state aid with subsidies from PFRON

A more difficult situation concerns the possibility of combining the subsidies from PFRON and FGŚP paid by province employment offices, because in this respect the legislator did not introduce a separate provision that would indicate the possibility of combining the above mentioned forms of aid. What is important is that the support offered within the Anti-Crisis Shields, paid out by the province employment offices, does not qualify as state aid and, therefore, is not subject to separate support limits of EUR 100,000, EUR 200,000 or EUR 800,000.

The support instruments which are not state aid by nature include:

• subsidy for salaries and social security contributions of employees affected by economic stoppage (Article 15g Anti-Crisis Shield);
• subsidy for salaries and social security contributions of employees whose working hours have been reduced (Article 15g Anti-Crisis Shield);
• subsidy for salaries and social security contributions of employees not covered by downtime, economic stoppage or reduced working hours (Article 15gg Anti-Crisis Shield).

In its initial explanations, the then Ministry of Family, Labour and Social Policy indicated that combining e.g. subsidies for employees affected by economic stoppage and wage subsidies from PFRON is admissible. However, after a detailed analysis of the provisions of the Rehabilitation Act and since the aid from FGŚP is not state aid by nature, further interpretations appeared, which greatly complicated the possibility of combining both subsidies. Information has been published on the PFRON website as an up-to-date summary of possibilities to combine grants from FGŚP and PFRON.

As regards PFRON, it is important that a monthly subsidy to the salary of a disabled employee does not accord to the part of the employee's salary which is financed from public funds (Article 26b sec. 7 Rehabilitation Act). The above provision does not apply where the employer has financed the employee's remuneration:

• from public funds from the activities referred to in Article 5 sec.1 point 5;
• from public revenue (proceeds from the sale of products and services provided by entities from the public finance sector) referred to in Article 5 sec. 2 point 3 of the Public Finance Act of 27 August 2009.

Therefore, on the one hand, the benefits obtained by the employer for the wage costs of disabled employees from FGŚP do not exclude the possibility of receiving a subsidy for the wages of disabled employees from PFRON. However, on the other hand, the subsidy from PFRON does not accord to an employee's wages in that part financed from public funds. The latter include funds from FGŚP. Therefore, these are public funds, although they do not constitute state aid or de minimis aid.

At the same time, when analysing the regulations concerning wage subsidies from PFRON, these are also not public funds that are included in the catalogue of those allowed under Article 26b sec. 8 of the Rehabilitation Act (i.e. those that allow wage subsidies from PFRON to that part of the wage costs that were incurred from those public funds).

Therefore, in order to receive a wage subsidy from PFRON, an employer who has received or will receive a subsidy from the FGŚP for the salaries of disabled employees subject to economic stoppage or reduced working time and subsidies from FGŚP for wages of disabled employees not subject to downtime, economic stoppage or reduced working time as a result of COVID-19, must:

• pay the payroll costs of the disabled employee in accordance with the requirements of Article 26a sec. 1a¹ point 1a, 2, 3 and sec. 1a² of the Rehabilitation Act, i.e. in the right form, on the right dates and, in the case of net remuneration, before submitting the application for subsidy to PFRON (so that the employee can have the salary before the employer submits the application);
• show the amount of support obtained to disabled employee’s wage from FGŚP (or from the funds of the organiser of a local government cultural institution) - in item 53 of Annex INF-D-P, as these are public funds.

If an employer has not entered the amount obtained from the FGŚP for a given person under item 53 of Annex INF-D-P, it should submit a corrected application (and annexes) with this information. This correction may result in the obligation to return the inflated subsidy amount to PFRON. The value of the wage subsidy for disabled employees from PFRON is calculated in accordance with explanatory note no. 17 to INF-D-P according to which the amount to be paid out, shown in item 55 of Annex INF-D-P, is determined by selecting the lowest amounts from among:

• the amount determined on the basis of Art. 26a sec. 1 and 1b of the Rehabilitation Act (item 51 in form INF-D-P);
• the amount of payroll costs less any aid already received for the same costs (items 52-53 in form INF-D-P);
• a limit on the payroll costs of a disabled employee (item 54 in form INF-D-P).

To sum up, the benefits obtained by the employer toward the payroll costs of disabled employees from FGŚP do not exclude the possibility of receiving a wage subsidy for disabled employees from PFRON. Nevertheless, an employer intending to benefit from FGŚP support should verify any obstacles beforehand in combining both types of subsidy to avoid being accused of combining the aforesaid forms of support to cover the same payroll costs of the employees.

Mateusz Brząkowski