Corporate awareness of social responsibilities is growing on the dynamically changing labour market. Private business is paying increasing attention to exclusion and diversity among employees. One of the manifestations of such openness and social responsibility is the gradually growing interest in employing people with disabilities. This proves that the role of more inclusive employers, i.e. employers who draw as many employees as possible into the life of the workplace, is increasing.

A good example of building a business based on openness and tolerance can be the employment of individuals with disabilities and promotion of their professional development in the workplace.

Legal status of employees with disabilities

The status of employees with disabilities is governed by the provisions of the Act of 27 August 1997 on Social and Vocational Inclusion and Employment of the Disabled (Journal of Laws of 2019, item 1172).

According to that Act, a disabled individual is one that holds a certificate of disability (meant in the legal sense). Disability can be confirmed by the following types of formal declarations:

1. Declarations issued by regional or provincial adjudicating bodies confirming a low, moderate or significant degree of disability;
2. Declarations issued by the ZUS Social Insurance Institution on total or partial incapacity for work;
3. Declarations issued for individuals before they reach the age of 16.

In addition to establishing the status of disabled individuals, these declarations constitute the basis for granting various types of allowances and benefits under separate regulations.

It should be remembered that it is entirely up to the discretion of individuals with disabilities whether they present documents confirming their health status (including disability certificates) to the employer.

Individuals with disabilities – who are they?

For many years, employers in Poland had numerous concerns associated with hiring people with disabilities. Their source could be found in a few basic reasons.

First of all, employers associated employment of the disabled with additional formalities and obligations, such as the need to adapt working premises, renovate buildings, etc.

In addition, the very word “disabled” implies in the general public perception a certain deficiency or shortcoming. Therefore, employers usually associated employees with disabilities as individuals whose mobility was reduced and who required special care and attention. Although these concerns were completely unfounded, they nevertheless functioned in the awareness of employers for many years.

What is more, the Polish legal system has not yet adopted a commonly accepted definition of disability. Therefore, various legal acts apply different notions to define disability, often using inadequate and pejorative terms that have entered common language, such as crippled, invalid, debilitated, mentally retarded or underdeveloped.

The legal situation of people with disabilities is complicated further by the fact that there is currently no uniform system of jurisprudence granting them appropriate rights. Thus, the grounds for obtaining a disability declaration are not always the same.

The terminology binding in the system of disability assessment itself, where in addition to a declaration of disability an employee can obtain a declaration of total or partial incapacity for work, is also far from perfect. Indeed, many kinds of statutory definitions related to disabilities are based on a medical model, suggesting that, for example, people with an established incapacity for work cannot be employed. However, the incapacity-for-work declaration does not deprive individuals with disabilities of their right to work. Consequently, these declarations focus primarily on the dysfunctions of people with disabilities, without indicating their potential and excluding the possibility of occupational development through work.

Benefits and incentives for employing people with disabilities

Despite the existing misgivings as regards the systemic regularisation of the situation of people with disabilities, the employment of the disabled is associated with numerous incentives and benefits. In addition, different types of support are available to employers from the State Fund for the Rehabilitation of Persons with Disabilities (PFRON), such as:

• Monthly subsidy of the salaries of employees with disabilities;
• Reimbursement of the costs related to the adaptation of workstations and workplace premises to the needs of employees with disabilities;
• Reimbursement of the costs of re-equipping workstations to meet the needs of employees with disabilities;
• Reimbursement of the costs of training employees with disabilities;
• Reimbursement of the monthly costs of hiring individuals to assist employees with disabilities in activities that facilitate communication with their surroundings, and in activities at the workstation that employees with disabilities find impossible or difficult to perform independently;
• Reimbursement of the costs of training assistants to employees with disabilities;
• Exemption from contributions to PFRON.

Wage subsidies of employees with disabilities are definitely the most popular form of support related to their employment.

Wage subsidies are available to:

• Employers with a work force equivalent to at least 25 full-time positions and the ratio of at least 6% of employment of people with disabilities;
• Employers with a work force equivalent to less than 25 full-time positions.

From April 1^st, 2020, the maximum subsidy amount is as follows:

1. PLN 1950 – for employees with a significant degree of disability;
2. PLN 1200 – for employees with a moderate degree of disability;
3. PLN 450 – for employees with a mild degree of disability.

In turn, the amounts of subsidies related to employees who have been diagnosed with mental illness, mental impairment, comprehensive developmental disorders or epilepsy, as well as blind employees, are increased by:

1. PLN 1200 – for employees with a significant degree of disability;
2. PLN 900 – for employees with a moderate degree of disability;
3. PLN 600 – for employees with a mild degree of disability.

Additional entitlements

The degree of disability also affects the extent of the employee’s additional entitlements. Therefore, it is first necessary to determine whether the employee has a disability declaration and then what is his or her degree of disability.

When employing people with disabilities, it is important to remember that:

• They are subject to essentially the same rules for taking up employment as any other employee, albeit with some exceptions. This means that the same rules for entering, amending and terminating employment contracts should apply to people with disabilities. In addition, individuals with disabilities can be employed by any workplace – it does not have to hold a special status or permission to employ people with disabilities;
• However, employers should remember that if they plan to employ people with disabilities they have to provide them with a reasonable amount of performance aids in cases where such people are bound to them by an employment contract, participate in the recruitment process or undergo training, vocational grounding, apprenticeship or pre-graduation internship. These consist in making changes or adjustments necessary in a particular situation to respond to the specific needs of the person’s disability as notified to the employer, provided that such changes or adjustments do not impose a disproportionate burden on the employer. Reasonable performance aids may, therefore, consist in an adaptation of the place of work (e.g. elimination of architectural barriers), provision of appropriate improvements (for example, allowing the use of alternative forms of communication, i.e. hiring a sign language interpreter), as well as scheduling working hours, division of tasks, etc., depending on the type of disability and the reported needs. Importantly, a failure to make the necessary reasonable adjustments is considered a violation of the principle of equal treatment at the workplace within the meaning of Article 183a § 2-5 of the Labour Code;
• In the case of any health dysfunctions in terms of preparing the workplace for the needs of a person with disabilities, it will be helpful to consult with:
• The in-house occupational health & safety specialist who knows best the specifics of working in a given workplace; or
• An ergonomics specialist who will be able to design a workstation account taken of the employee’s particular disability;
• The employer should also obtain an opinion from doctors who care for employees with disabilities or from the occupational doctor on the necessary changes and modifications required in order to adapt workstations to the needs of employees with disabilities (if necessary);
• Persons with a mild degree of disability may not work more than 8 hours per day and 40 hours per week;
• Persons with a significant or moderate degree of disability may not work more than 7 hours a day and 35 hours a week, unless they are employed as guards or are allowed to work under the general working time rules by the doctor who carries out preventive examinations of employees or, if there is no such doctor, the doctor who normally looks after the person in question; 
• Disabled individuals, no matter the degree of their disability, cannot work at night or overtime;
• The employer should also treat as working time a break of 15 minutes which the disabled person uses to do remedial exercises or to rest;
• Persons with a significant or moderate degree of specific disability are entitled to 10 working days of additional holiday leave per calendar year. The right to the first additional leave is acquired after the person has worked for one year from the date on which the degree of disability was determined;
• Persons with a significant or moderate degree of disability have the right to 21 working days of paid leave in a rehabilitation facility, but only once a year;
• Persons with a significant or moderate degree of disability have the right to paid time off from work in order to undergo specialist medical examinations or medical/therapeutic procedures, and in order to obtain orthopaedic supplies or get them repaired, provided that these activities cannot be performed outside working hours.

Prevention of COVID-19 and people with disabilities

Individual Crisis Shields amend the Act of March 2^nd, 2020 on Special Solutions Related to the Prevention, Countering and Combating COVID-19, other Infectious Diseases and Related Crisis Situations (Journal of Laws of 2020, item 374, as amended) and introduce a number of changes that have a direct or indirect impact on the legal status of disability declarations.

Primarily, the new regulations make it possible to extend the validity of current disability declarations. According to Article 15(h) of the Special Act, for reasons related to the fight against COVID-19, a declaration of disability or a declaration of the degree of disability issued for a specific period, whose validity:

1. Expires up to 90 days before the date of entry into force of the COVID-19 Combating Act, provided that a further application for a declaration has been submitted within this period;
2. Expires on the date of the entry into force of the COVID-19 Combating Act;

remains valid until the expiry of the 60^th day from the date of revocation of the state of epidemic threat or the state of epidemics, but for no longer than until the date of issuing a new declaration of disability or a declaration of the degree of disability (the period of validity of parking cards issued to persons with disabilities is extended accordingly).

In turn, according to Article 15(z)(c) of the Special Act, a declaration of:

1. Partial incapacity to work;
2. Total incapacity to work;
3. Total incapacity to work and live independently;
4. Incapacity to live independently;

issued for a fixed period on the basis of, inter alia, the provisions of the Act of 17 December 1998 on Old Age and Disability Pensions Granted by the ZUS Social Insurance Institution, the validity of which expires during the course of the state of epidemic threat or the state of epidemics, or within 30 days following their revocation – remains valid for a further period of 3 months from the date of its expiry, if an application for determining the eligibility for the benefit in a subsequent period is submitted before the expiry of the current declaration.

The rules set out above apply mutatis mutandis to declarations whose validity has expired before the date of the entry into force of the COVID-19 Combating Act if:

• The application for determination of the eligibility for the benefit in a subsequent period was submitted before the expiry of the current declaration; and
• The new declaration was not issued before the date of the Act’s entry into force.

Importantly, the Council of Ministers may, by way of an ordinance, determine longer periods of declaration validity than those indicated above.

Summary

The issue of the employment of people with disabilities may currently appear the least relevant in terms of diversity management and inclusion policies. In fact, it seems that people with disabilities continue to be underrepresented in corporate structures compared to their overall number in society. The caution exercised in approaching this subject is probably due to the obligations described earlier and stereotypes persisting in the public mind. Nonetheless, there is a trend indicating that employers are hiring people with disabilities increasingly often and more willingly, as they see numerous benefits in so doing. This only proves that disability is no longer perceived as a kind of forced exclusion from the labour market. And an increasingly important role in this is played by the policy of managing diversity in the workplace, which, if effectively applied, makes it possible not only to activate individuals with disabilities professionally, but also to integrate them with other employees in the corporation.

Mateusz Brząkowski