A mandatory quota system in the company’s headcount for disabled employees is introduced
Labor and Employment Law Alert 1-2019
It was published today in the Official Gazette Law no. 4/2019, of January 10th, which aims to promote the engagement of disabled persons and their introduction in the labor market, through the establishment of a mandatory quota system for disabled persons, with a disability degree equal or superior to 60%, in the employer’s headcount.
These new rules are applicable to employers from the private and public sector with an headcount of, at least, 75 employees. For this purpose, persons in training, interns and service providers shall not be considered.
1. Employees considered
To be considered for the introduced numerus clausus the employee, or the candidate to a given position, shall:
a) Be considered a disabled person, i.e., one that, due to loss or anomaly, congenital or not, of functions or body parts, including psychological functions, suffers difficulties which, combined with the usual environmental factors, limit his activity;
b) Be able to render, without functional limitations, the activity to which he is applying for, or, if a limitation exist, it can be neutralized by the adaptation of the work-post or with supporting equipment;
c) Have a disability degree of at least 60%.
The employee or candidate’s disability may be a cerebral paralysis, as well as organic, mobility, visual, auditory or intellectual disability.
The certification of the disability, including the person’s disability degree, is issued by medical services committees.
2. Mandatory numerus clausus for disabled employees in the employer’s headcount
Employers will be obliged to comply with mandatory numerus clausus in their headcount regarding disabled employees, as follows:
a) Employers with at least 75 employees: a numerus clausus equivalent to 1% of the headcount;
b) Employers with at least 250 employees: a numerus clausus equivalent to 2% of the headcount.
For this purpose, the average of employees in the employer’s headcount of the preceding civil year shall be considered.
3. New admissions
From January 1st, 2020, onwards, at least 1% of the employer’s annual admissions shall be of disabled employees.
The recruitment and selection proceedings shall consider these new rules. As a result, the tests to be done by the candidates during the recruitment proceedings shall be adapted accordingly, upon request of any candidate. For this, the employer may request the technical assistance of Portuguese public authorities.
If a candidate’s disability requires that his work-post is adapted accordingly, or the existence of special supporting equipment, the employer should require the technical assistance of public authorities.
4. Exemption requests
Employers may request not to be obliged to comply with these new rules, upon written request to Portuguese labor authorities, along with a reasoned opinion issued by Portuguese public authorities recognizing the impossibility to apply these rules to the specific work-post.
Employers may as well request their exemption to observe the introduced numerus clausus in their headcount for disabled employees upon proof to be presented to Portuguese labor authorities of the inexistence of a sufficient number of candidates meeting the requirements to occupy the positions offered by the employer in the previous year.
5. Entry into force
Law no. 4/2019, of January 10th will enter into force on February 1st, 2019.
Nonetheless, a transition period is established so that employers can meet the introduced numerus clausus for disabled employees on their headcount:
a) Employers with 75 to 100 employees: until February 1st, 2024;
b) Employers with more than 100 employees: until February 1st, 2023.
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