Introduction

The federal government recently enacted the Rights of Persons with Disabilities Act 2016 in order to empower disabled individuals and ensure their inclusion in the education and employment spheres. It was enacted to fulfil the obligations set out in the UN Convention on the Rights of Persons with Disabilities, to which India is a signatory.

The Disabilities Act replaces the erstwhile Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. As a step forward, 21 different types of disability (14 more than recognised under the former legislation) are recognised under the Disabilities Act, including:

  • disability caused by neurological condition;
  • disability caused by acid burns;
  • speech and language disabilities;
  • mental illness; and
  • learning disabilities.

Although the government is primarily responsible for ensuring that disabled individuals receive equal treatment under the Disabilities Act, private organisations have also been made accountable for various obligations.

Role of private employers

Under the Disabilities Act, private employers must fulfil certain responsibilities and duties to ensure that disabled persons are included in the employment market for example, private employers must:

  • frame and publish an equal opportunity policy, which must be registered with the chief commissioner of labour, stipulating details of the facilities and amenities that will be provided to disabled employees;
  • identify posts and vacancies that would be suitable for disabled persons and include details of the same in their equal opportunity policy;
  • appoint a liaison officer (if the employer has over 20 employees) to oversee the recruitment of disabled persons and provide the necessary amenities and facilities for such employees;
  • ensure that no disabled person is discriminated against because of his or her disability, except in cases where the act or omission is a proportionate means of achieving a legitimate aim;
  • ensure that the accessibility norms set by the government are met, including with regard to building plans and structures, the physical environment, transport options, and information and communications technology. Employers that fail to do so will not be issued a certificate of completion or will be prohibited from occupying a building;
  • provide additional facilities to any disabled employees, such as:
    • training facilities;
    • assistive devices;
    • barrier-free access; and
    • additional benefits (eg, preference in transfer and special leave); and
  • maintain records containing details of any disabled persons that they employ.

The act also envisages employers receiving incentives from the appropriate government body to ensure that at least 5% of their workforce comprises persons with recognised disabilities.

Comment

The Disabilities Act is a landmark development focused on providing equal employment opportunities to disabled persons. It stems from society's increasing need to realise the importance of inclusion in order to progress in a holistic manner. The corporate sector in India is constantly generating job opportunities due to the country's economic and industry growth.

As the Disabilities Act encompasses the private sector, it is a step forward in ensuring increased employment opportunities for disabled persons. However, the obligation on private employers to provide additional amenities to disabled employees (eg, training facilities, assistive devices and barrier-free access) involves additional costs. In this regard, the Disabilities Act is silent with respect both to government incentives to private employers and the possibility of setting-off these costs. Failure to comply with the Disabilities Act may attract a penalty of up to Rs500,000. While the law showcases the government's commendable effort in recognising the needs of disabled persons, it does not put forth a robust timeline or a framework within which the mandatory obligations must be fulfilled. Thus, the effectiveness of the Disabilities Act will depend on the proactive measures taken by the government and private sector in relation to providing guidelines and formulating rules.

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For further information on this topic please contact Pooja Ramchandani or Divya Chaudhary at Shardul Amarchand Mangaldas & Co by telephone (+91 11 4159 0700) or email (pooja.ramchandani@amsshardul.com or divya.chaudhary@AMSShardul.com). The Shardul Amarchand Mangaldas & Co website can be accessed at www.amsshardul.com.