The Act dated 31 March 2020, namely the so-called Anti-Crisis Shield 1.0, introduced a series of new provisions to the Act dated 2 March 2020 on specific solutions associated with the prevention and countering of the SARS-CoV-2 virus, other contagious diseases and the crisis situations they cause (hereafter the Special Law). Its main purpose was to primarily enable employers to retain work positions during suspension of activity or reduction of revenues. It also includes important provisions on extension of the validity of judgments regarding disability, degree of disability and inability to work to which employers hiring disabled persons should draw particular attention.

System of ruling on disability

The legal status of disabled persons has been regulated in the Act dated 27 August 1997 on the professional and social rehabilitation and employment of disabled persons (Journal of Laws, 2020, pos. 426). According to this law, a disabled person is a person holding a ruling on disability (so-called disability in a legal sense). Disability can be confirmed with the following types of judgments:

1. rulings of county and provincial boards to pronounce on mild, limited or significant degree of disability;
2. rulings of the Social Insurance Administration (ZUS) on incapability of independent existence and complete or partial inability to work, which are treated on an equal basis with rulings on degree of disability such that:
   • a ruling on complete inability to work or maintain independent existence is equivalent to a ruling on considerable degree of disability;
   • a ruling on inability to maintain independent existence is equivalent to a ruling on a considerable degree of disability;
   • a ruling on complete inability to work is equivalent to a ruling on limited degree of disability; and
   • a ruling on partial inability to work is equivalent to a ruling on mild degree of disability;
3. ruling on disability issued prior to reaching the age of 16.

The receipt of a ruling on degree of disability relates to the acquisition and exercise of strictly defined privileges. Therefore, the degree of disability also affects the scope of additional employee rights, as well as employer rights with regard to the ability to obtain public assistance associated with employment. Therefore, it must first be established whether an employee holds a ruling on disability as well as the degree of such disability.

A disabled person holding a ruling on degree of disability or disability may, among others, take part in occupational therapy workshops at rehabilitation centres, as well as receive co-financing for orthopaedic, assistance and technical aid items. A disabled employee is also able to make use of strictly defined employee privileges (including the right to additional vacation leave, right to additional work break, right to shortened work hours, as well as a ban on work at night or overtime).

A valid disability ruling is also vital to an employer hiring a disabled person due to additional financial support that can be received on this basis from the State Fund for the Rehabilitation of Disabled Persons (PFRON). This includes, among others, monthly co-financing of disabled employee remuneration, reimbursement of costs associated with the adaptation of a work position and premises for disabled employee needs and the reimbursement of costs of equipping a disabled person’s workplace. An employer hiring a person with a ruling on degree of disability can also reduce monthly contributions to PFRON.

An employee holding a valid ruling on degree of disability also has great significance from the standpoint of employers holding the status of protected work enterprise (ZPChr) or professional activity enterprise (ZAZ). In order to maintain this status, an employer is obligated, among others, to legitimise certain indices on the employment of disabled persons. Therefore, if employees fail to provide employers with ZPChr or ZAZ status valid rulings confirming degree of disability, the index of employing such persons may fall below statutory requirements, thus leading to a decision on loss of ZPChr or ZAZ status and additional loss of tax benefits in this regard. 

The above clearly shows that the absence of a valid ruling on degree of disability can lead to numerous complications, both for an employee as well as the employer. 

Longer validity periods for disability rulings

The threat arising from the SARS-CoV-2 virus has prevented the issue of new rulings by bodies appointed for this purpose (county and provincial boards and ZUS) in light of the requirement of the interested party to take part therein. For this reason the Anti-Crisis Shield 1.0 also includes provisions on extension of the validity of rulings on disability, degree of disability and inability to work.

According to art. 15h of the Special Law, for reasons associated with the countering of COVID-19, a ruling on disability or degree of disability issued for a specified time period on the basis of the Rehabilitation Act whose validity:

1. expires up to 90 days prior to the Anti-Crisis Shield entering into force (31 March 2020), on the condition of filing another application to issue a ruling within this time, retains validity up to 60 days after the recall of a state of epidemiological threat or epidemic, but not longer than to the date of issuing a new ruling on disability or degree of disability;
2. expires from the date of the Anti-Crisis Shield entering into force (31 March 2020), retains validity up to 60 days after the recall of a state of epidemiological threat or epidemic, but not longer than to the date of issuing a new ruling on disability or degree of disability.

The first point entered into force on 9 December 2019 and the second point on 8 March 2020.

Extension of rulings on inability to work

According to art. 15zc of the Special Law, rulings treated equally as rulings on disability, i.e. rulings on:

1. partial inability to work,
2. complete inability to work,
3. complete inability to work and inability to maintain independent existence,
4. inability to maintain independent existence

issued for a specified time, among others, on the basis of regulations on retirement and pensions from the Social Insurance Fund whose validity expires during the state of epidemiological threat or epidemic or within 30 days after their recall will be valid for a further three months from the date of their expiry if an application is filed to establish rights to a benefit for a further period prior to expiration of the above validity deadline.

Regulations on rulings on inability to work and inability to maintain independent existence entered into force on 8 March 2020. The above principles apply appropriately to rulings that expired prior to the date of the Anti-Crisis Shield 1.0 entering into force (31 March 2020) if:

• an application to establish rights to a benefit or a subsequent period was filed prior to expiry of the validity of such ruling, and
• a new ruling was not issued prior to the date of entry of the above law into force.

The Council of Ministers may, through an executive order, establish longer validity periods for rulings than indicated above.

For this reason the employer of a disabled person whose ruling expires should obtain necessary information from an employee for the purpose, for example, of further co-financing of remuneration from PFRON in the form of a confirming document and in required instances employee submission of an application to issue a ruling (and verify whether an application was filed on time), as well as notified that a subsequently issued ruling should be provided to the employer as quickly as possible in order to forestall an application for unwarranted support (a subsequent ruling may provide a different solution).

It should be pointed out that, in accordance with § 2 sec. 1 and 2 of an executive regulation of the Minister of Family, Labour and Social Policy dated 26.03.2020 amending a regulation on declaration of disability or degree of disability for reasons associated with the countering of infection, prevention of spread, prophylactics and treatment of the effects of a contagious disease caused by the SARS-CoV-2 virus, it has become possible to review applications for a new ruling in absentia and without the participation of interested parties (naturally, to the extent allowed by provided information).

Mateusz Brząkowski