What are your obligations regarding disabled employees?

Introduction
Employer obligations
Comment

Introduction

The General Law for People with Disabilities came into force on December 24 2012 and established a general legal framework to promote, protect and uphold the rights of disabled people. Peru has since taken several measures to ensure that the right of disabled employees to enjoy favourable work conditions is upheld.

For example, in April 2014 the General Law for People with Disabilities regulations were published, and in 2015 a ministry resolution established complementary regulations to ensure that private employers comply with the legal quota for disabled employees.

Further, as the general law and its regulations established the duty for employers to make reasonable adjustments in the workplace for disabled employees, in 2016 Ministry Resolution 127-2016-TR established guidelines for private sector employers to develop, implement and execute such reasonable adjustments.

These regulations have imposed a number of obligations on employers to protect not only disabled employees, but also disabled people who are looking for work.

Employer obligations

No discrimination based on disabilities
Employers cannot discriminate against disabled employees at any time during the employment relationship, including on its commencement and termination. Therefore, any distinction, exclusion or restriction based on a person's disability that is intended to obstruct or eliminate any of the person's rights will be considered null. Further, engaging in discriminatory acts based on a person's disability is considered a hostile act equivalent to a dismissal.

Hiring employees with disabilities
Disabled people must account for at least 3% of the total workforce of an employer with more than 50 employees. As an exception, employers do not have to comply with the hiring quota if they can demonstrate that there were no vacancies (either temporary or permanent) in the same year. Further, even if there were vacancies, employers may be exempted from the quota if they can prove that:

• there were technical or risk-related reasons as to why disabled people could not be hired;
• job ads were placed on the employment service administrated by the Ministry of Labour;
• no discriminatory conditions were imposed on people with disabilities; and
• the evaluation process allowed disabled people to participate.

Further, employers must report on the number of disabled employees on their payroll.

Reasonable adjustments to workplace
Employers must adapt tools, machinery and working conditions (eg, working hours) to meet the needs of disabled employees. Failure to make the necessary adjustments will be considered a hostile act equivalent to a dismissal. Reasonable adjustments must be provided during the employment relationship, but also before it commences. In this regard, adjustments must be made before initiating the selection process and during its development. Ministry Resolution 127-2016-TR established a reasonable adjustment process, which includes:

• the request being submitted to the employer;
• the parties deliberating for up to 30 days; and
• the results of the deliberation being registered with the labour authority.

Comment

Employers do not have to introduce reasonable adjustments for disabled employees if they can demonstrate that doing so would cause an excessive economic burden. Under Ministry Resolution 127-2016-TR, an 'excessive economic burden' exists if the adjustments would, for example:

• suspend or alter the employer's productive cycle in such a way that satisfaction of its productive goals would be at risk;
• have a negative economic impact that would endanger the employer's expected economic results for the corresponding fiscal year; or
• result in a shortage of funds that would impede the employer's timely compliance with its obligations.

Therefore, taking into account the new guidelines, employers can allege that reasonable adjustments would have an excessive economic burden only in extraordinary circumstances.

For further information on this topic please contact Jorge Toyama Miyagusuku or Flavia Zarins at Miranda & Amado Abogados by telephone (+51 1 610 4747) or email (j[email protected] or f[email protected]). The Miranda & Amado Abogados website can be accessed at www.mafirma.pe.