Corso: Module 4: Employment rights of people with ASD in an international, European and national context

Employment rights of people with ASD in an international, European and national context

Overview

General Objectives

Knowledge- Getting acquainted with the applicable provisions of the labour law and the law regarding the care of disabled persons by the state.

Skills- Ability to apply the law at work / company. Taking advantage of discounts, subsidies, tax reliefs. Free movement in the provisions of international, European and national labour law regarding people with disabilities, including people with ASD.

Social competences- Building positive relations between the company / team and an employee with ASD

Educational Outcomes

After completing the module, the participant has the following knowledge:

Participant understands the essence of labour law in relation to people with disabilities, its character and specificity of its norms, its place in the legal system
Participant knows the relationship between the labour law of people with disabilities and other areas of law, regulations, and ordinances concerning people with disabilities.
Participant supplements knowledge with information on other areas of law regarding people with disabilities.
Participant is aware of the social roles performed as part of professional duties to help people with ASD.
Participant knows the rules of employing people with ASD.
Participant is able to connect the provisions of labour law with key HR processes - competency management, remuneration, training and development, recruitment.
Participant analyses the performance of employees with ASD using employment law and case law for the type of Autism

Duration

4hours

Course Content

Categoria: English

Indice degli argomenti

Introduzione

Minimizza tutto Espandi tutto
Unit 1: International reference regulations on human rights, disability and ASD
Unit 2: European reference regulations on human rights, disability and ASD
Unit 3: Law provisions at national level in order to hire and prepare an employee with ASD
References
- References Pagina
Quiz
- Quiz
Forum
- Module 4: Forum

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Salta [Cocoon] FAQs

Frequently Asked Questions

Is the international legal framework binding on States?

According to the UN Division for Social Policy and Development, international legal framework admits two types of instruments:

Multilateral treaties are binding but only to those which have consented to be so bound, by signing and ratifying or acceding to them.

Some universal instruments, such as the Universal Declaration of Human Rights, and some specific provisions, such as the principle of non-discrimination, have become part of customary international law and are considered binding on all States, even those that have not ratified a human rights treaty that embodies norms of customary law.

International instruments such as declarations, resolutions, principles, guidelines and rules, are not technically legally binding. They express generally-accepted principles and represent a moral and political commitment by States. They also can be used as guidelines for States in enacting legislation and formulating policies concerning persons with disabilities.

States are primarily responsible for transforming legislative, administrative and judicial practices, to empower persons with disabilities to exercise their rights. States that have become Parties to an international convention are legally bound to implement the provisions contained in the convention in their domestic jurisdiction. International law leaves it to States to adopt such legislative and other measures, consistent with their constitutional processes, to give effect to the obligations.

Which is the most important international instrument concerning the rights of persons with disabilities and what are its provisions?

The UN Convention on the Rights of Persons with Disabilities (UNCRPD) is the first international, legally binding instrument setting minimum standards for rights of people with disabilities, and the first human rights convention to which the EU has become a party. The purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. The article 27 is devoted to the right to work and employment. The basic rules for the States parties in the implementation of the employment rights of persons with disabilities are as follows: 1.- Non-discrimination should cover all aspects of employment, including the full recruitment processes, the hiring standards and everything related to terms and conditions of employment. 2.- Accessibility: States are required to take steps towards ensuring a fully accessible workplace: This obligation is crucial for removing the various barriers—physical, attitudinal, information-, communication- or transport-related that prevent persons with disabilities from seeking. 3.- Reasonable accommodations: refers to necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms (art. 2 CRPD). According to the CRPD the denial of reasonable accommodation constitutes a discrimination on the basis of disability and leads to perpetuating inequality 4.- Positive measures: States shall promote employment opportunities for persons with disabilities

What competences does the EU have regarding the legal regulation of the employment of people with disabilities?

The European Union only has the competences conferred by the Treaties. Competences not conferred on the EU through Treaties correspond to the EU countries. The Lisbon Treaty, which entered into force at the end of 2009, clarifies the division of competences between the EU and the EU countries. These competencies are divided into three main categories

Exclusive competences of the EU: customs, monetary, common fisheries, common commercial policies, conclusion of international agreements or instructions on the operation of the common internal market.

Shared competences in which the EU and EU countries have the capacity to legislate and adopt legally binding acts. Such us, environment, social policy, transport, energy, consumer protection, security and justice, development cooperation and humanitarian aid, research, public health, agriculture and fisheries, cohesion and social policy and trans-European networks

Support competences in which the EU can only intervene to support, coordinate or complement the action of EU countries. Where the protection and improvement of health, industry, culture, tourism, education and sports, civil protection and administrative cooperation are included

Thus, the EU has competences with relation to disability rights only in those areas in which the Treaties have conferred competences. For instance, EU has competences to legislate in the area of employment; however, it does not have the permission to legislate in the area of education and training.

The main European initiatives on employment and disability are:

Treaty on the Functioning of the European Union (arts. 153, 10 , 19), setting minimum standards.

2000/78/EC Employment Equality Directive TFEU, 2012 (art. 5) that establishes that employers are obliged to take appropriate measures to enable a person with a disability.

Commision Regulation 651/2014 (arts. 31,34): Training aid and additional costs in employment of workers with disabilities.

General Block Exemption Regulation, 2014: defines the conditions of the aid granted to facilitate the employment of people with disabilities

How Europe promotes the employment of disabled people?

Positive actions on behalf of people with disabilities have a long history in most Member States in the European Union. They are measures aimed at promoting access to employment for disabled people, to the same extent as members of other categories. The most significant are:

The quota system seeks to achieve disabled people’s employment by means of an obligation to employ a proportion of disabled people. Quota systems for private and/or public enterprises or institutions exist in the majority of EU countries. Their target is to stimulate labor demand by committing employers to employ a certain share of employees with disabilities. Typically, the stipulated share ranges between 2% and 7% of the workforce. In most countries the degree of fulfilment ranges between 30% and 70%. According to available empirical data, quota systems only lead to small net employment gains.

Supported employment: is defined as individualized guidance and accompaniment actions in the workplace, provided by specialized labor trainers, which aim to facilitate the social and labor adaptation of workers with disabilities with special difficulties of labor insertion in companies of the ordinary labor market.

Sheltered employment: was created for "those people who, due to their disability, are not able to get or keep a conventional job, assisted or unassisted". They can take various forms, such as day care centers where people with disabilities participate in occupational therapy programs that involve producing goods and services or non-profit purposes, or where people with disabilities participate in employment activities from which they receive an income.

What does EU for employing people with disabilities?

In March 2021, the European Commission adopted the Strategy for the rights of persons with disabilities 2021-2030.

The objective of this Strategy is to progress towards ensuring that all persons with disabilities in Europe, regardless of their sex, racial or ethnic origin, religion or belief, age or sexual orientation.

This new and strengthened Strategy takes account of the diversity of disability comprising long-term physical, mental, intellectual or sensory impairments (in line with Article 1 of the United Nations Convention on the Rights of Persons with Disabilities), which are often invisible. Addressing the risks of multiple disadvantage faced by women, children, older persons, refugees with disabilities, and those with socioeconomic difficulties, it promotes an intersectional perspective in line with the United Nations 2030 Agenda for Sustainable Development Goals (SDGs).

The new strategy therefore contains an ambitious set of actions and flagship initiatives in various domains and has numerous priorities, such as:

• accessibility: being able to move and reside freely but also to participate in the democratic process

• having a decent quality of life and to live independently as it focuses notably on the de-institutionalisation process, social protection and non-discrimination at work

• equal participation as it aims to effectively protect persons with disabilities from any form of discrimination and violence, to ensure equal opportunities in and access to justice, education, culture, sport and tourism, but also equal access to all health services

• the role of the EU to lead by example

• the EU’s intention to deliver on that strategy promoting the rights of persons with disabilities globally

The Commission will support Member States in shaping their national strategies and action plans to further implement the United Nations Convention on the Rights of Persons with Disabilities and the EU legislation in the field.

What is the European Social Fund?

The European Social Fund is the main financial instrument of the European Union to promote employment in the Member States and promote greater economic and social cohesion.

In addition to facilitating access to employment for millions of people, the ESF has been involved in the reintegration of disadvantaged people into society.

The three key principles guiding the ESF are:

- Collaboration.

- Shared management.

- Co-financing.

ESF funds a rich variety of projects that improve people’s employment prospects and the jobs they do. EU funding is available for any size of enterprise in any sector including entrepreneurs, start-ups, micro companies, small and medium-sized enterprises, and larger businesses.

You may apply for a grant or participate in a procurement procedure if you run a business or a related organisation (business associations, business support providers, consultants, etc.) that runs projects that further the interests of the EU, or if you contribute to the implementation of an EU programme or policy.

Furthermore, a wide range of financing is available for companies: business loans, microfinance, guarantees and venture capital.

Is there a specific labor legislation for people with ASD?

This is a Spanish overview. To expand the information, it is necessary to study case by case. At the national level, each country has the competence to develop legislation that is always more permissive than the preceding administrative level.

The legislation applicable to people with ASD in Spain is the general legislation regarding people with disabilities. As regards specific employment conditions, it is regulated in the Workers' Statute and in the rest of the labor regulations.

The recent Spanish Strategy for Active Support to Employment 2021-2024 (approved in December 2021) specifically recognizes autism spectrum disorder in reference to people with disabilities and for the first time, dissociating it from intellectual disability. One of the strategic objectives of this new text is to achieve an approach centered on people and companies, accompanying job seekers in a personalized way and providing an individualized service to employers.

It is a step forward for the Spanish Government in terms of promoting access to the labor market for people with ASD.

Are the UN Guiding Principles on Business and Human Rights binding?

The Principles are not binding international law. Nevertheless, they are the most authoritative international statement to date regarding the responsibilities of business with respect to human rights.

How can I promote disability inclusion in the workplace?

Hiring of people with disabilities reinforces the Diversity policy of the companies, resulting in an open corporate culture, without prejudice, in tune with society and, therefore, more competitive. Based on the rights protected by the Convention and the procedure established by the Guiding Principles on Business and Human Rights corporate responsibility towards people with disabilities can be strengthened by establishing the following steps:

Step 1 : Make a commitment : a formal commitment of the company with the disability.

Step 2 : Identify possible negative impacts on the rights of people with disabilities in the company's area of influence. Prioritize impacts (severity / remediability / incidence / connection) in order to consider corrective measures to take.

Step 3 : Establish the procedures and those responsible for preventing, mitigating and repairing possible impacts, as well as communicating the progress made.

Assignment of managers and resources
Assignment of managers and resources
Assignment of managers and resources
Assignment of managers and resources

Step 4: Contribute to the SDGs related to disability, promoting certain actions that aim to enhance the role of people with disabilities in society from the 2030 Agenda and the Goals in objectives 4, 8, 10, 11 and 17.

Do I have an obligation as a company to adapt the working conditions of a disabled employee?

This is an example for the Spanish Country Case. The requirements of the workers and companies will depend on the existing national regulation.

In general, different conditions for people with disabilities are not established in the Workers' Statute. There is no legal basis that regulates special working conditions due to the disability itself.

However, it would be possible to urge a modification of the conditions by application of the general principle of the right to physical integrity and an adequate safety and hygiene policy.

The Workers' Statute establishes that, among the obligations of the companies, is to protect the physical integrity of the worker. Therefore, if the worker provides the relevant documentation that justifies the modification of his working conditions, and the employer voluntarily does not carry it out, he would be facing a serious breach of his obligations.

What do I have to take into account regarding contracts to benefit from the advantages of hiring a person with a disability?

This is an example for the Spanish Country Case. The requirements of the workers and companies will depend on the existing national regulation and company’s agreements.

Indefinite-term employment contract:

The degree of disability of the worker and that it is duly recognized by the competent body.
That he is unemployed and enrolled in the public employment service
That complies with the requirements of prior contracting deadlines and type of contract
Companies may apply for these benefits
Beneficiary companies are obliged to maintain the stability of these workers for a minimum period of 3 years

Temporary contract for the promotion of employment:

The degree of disability of the worker and that it is duly recognized by the competent body
That he is unemployed and enrolled in the public employment service
That complies with the requirements of prior contracting deadlines and type of contract
Employers must hire workers through the Public Employment Service (full time or part time)
The contract will have a duration between12 months and 3 years.

Interim contract to substitute people with disabilities:

The degree of disability of the worker and that it is duly recognized by the competent body
That he is unemployed
The trial period must not exceed of 6 months.

Employment contract for training:

The degree of disability of the worker and that it is duly recognized by the competent body
In the case of hiring disabled workers there is no age limit;
Not having the necessary qualifications to formalize an internship contract.
The contract must expressly state the trade or occupational level of the apprenticeship, the time dedicated to training and its hourly distribution (min.15% theoretical training), the worker’s remuneration (not less than the minimum inter-professional wage) the duration of the contract (between 6 months and 2 years) and the name and professional qualification of the person designated as tutor
The working conditions will include the same contingencies and protections as those of any other contracted person.

What incentives in hiring people with disabilities can I find?

The advantages and benefits listed are merely indicative, and may be subject to modification and even deletion by the State or other administrative divisions. This is an example for the Spanish Country Case. The grants will depend on the existing calls at any given time and will not always be applied in all territories.

In relation to contracts:

Indefinite-term employment contract:

1.- Subsidy for permanent hiring

2.- Bonuses in business contributions to Social Security

3.- Subsidy for job adaptation

Temporary contract:

1.- Bonuses in business contributions to Social Security

2.- Subsidy for job adaptation

3.- Subsidy when transformation into permanent contracts

Interim hiring to substitute people with disabilities

1.- 100% discount on business Social Security contributions.

Training contracts

1.- Reductions in Social Security contributions

2.- Subsidy for job adaptation

In relation to supported employment:

They will be able to promote supported employment projects, and be beneficiaries of the corresponding grants:

a) Associations, foundations and other non-profit entities.

b) Special Employment Centers.

c) Companies in the ordinary labor market.

1. Subsidies for hiring.

2. Bonuses

3. Aid for the financing of the costs derived from the hiring of labor trainers.

In relation to corporation tax, the amount of:

- Subsidy for each person/year of increase in the average workforce of workers with disabilities by an equal degree or greater than 33% and less than 65%, contracted by the taxpayer, experienced during the tax period, with respect to the average workforce of workers of the same nature in the immediately preceding period.

- Subsidy for each person / year of increase in the average workforce of workers with disabilities by one degree equal to or greater than 65%, hired by the taxpayer, experienced during the tax period, with respect to the workforce average number of workers of the same nature in the immediately preceding period.

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