Companies with over 50 employees are obligated to employ a certain minimum number of persons with disabilities according to current legislation. Are there other options available to employers?
The obligation of employers with at least 50 employees to hire persons with disabilities at a minimum rate of 4% is outlined in Article 78 of Law no. 448 of December 6, 2006, regarding the protection and promotion of the rights of persons with disabilities, updated. It stipulates that public authorities, legal entities, whether public or private, with at least 50 employees, are obliged to employ persons with disabilities at a rate of at least 4% of the total number of employees.
Among the entities listed, those that do not employ persons with disabilities in compliance with the specified percentage must pay a monthly sum to the state budget, representing the gross minimum wage guaranteed by the country, multiplied by the number of job positions where persons with disabilities were not employed.
In the previous form of regulation, in force until September 1, 2017, the law provided more options for the employer. On the other hand, the amount to be paid was 50% of the gross minimum wage, unlike the current regulation, which requires 100% or the equivalent of a gross minimum wage. The previous options involved the monthly payment to the state budget of an amount representing 50% of the gross minimum wage multiplied by the number of job positions where persons with disabilities were not employed or the purchase of products or services from authorized protected units through partnership, in an amount equivalent to the sum owed to the state budget. This last option no longer exists in the current legal text.
Therefore, according to the current regulation, we can observe that an employer who makes unsuccessful efforts to hire persons with disabilities is obligated to pay a gross minimum wage for each person with disabilities they should have hired.
Although the amendment to the law aimed to align with European regulations, which dictate the imposition of the obligation for employers to take effective and practical measures, taking into account each individual situation, to allow any person with disabilities to have access to employment, exercise it, advance, or have access to training, the decisions of the Court of Justice of the European Union noted that there is an essential condition that these measures do not involve a disproportionate burden.
In the situation where employers, falling under the scope of this law, take all necessary steps to employ persons with disabilities and do not reach the 4% threshold mentioned above, the employer has the option to file a lawsuit in court to be exempt from these obligations. Our company can provide the necessary legal assistance in resolving this issue.