Castellán

Which companies does the regulation cover and to what extent are they obligated?

The regulation covers companies with 25 or more permanent workers. The main obligation established is to hire people with disabilities, reaching a certain percentage of disabled workers with each new hire, compared to the total number of workers on their payroll. Temporary, seasonal, fixed-term, or project-based contracts are excluded for these purposes.

Regarding the percentage of quotas to be respected, they were established gradually based on the number of employees in the companies, foreseeing an increase every 12 months in the first years of the Law's validity.

In this sense, during the first year of the already active law, companies with 500 or more workers must reach 3%. On the other hand, companies with between 150 and 500 workers must respect 2%, while employers with 50 to 150 workers must respect 1%.

Companies with 25 to 50 workers are not required to comply in the first year of the Law, for which it begins to apply from the second year of its validity.

After November 18, 2021, all companies covered must comply with a minimum of 4% of disabled workers compared to their total permanent payroll.

What do we understand by \"disability\"?

We must refer to the legal definition of Law 18,651, as Law 19,961 in its article 2 expressly refers us to it. In this sense, “A person with a disability is considered to be anyone who suffers from or presents a permanent or prolonged functional alteration, physical (motor, sensory, organic, visceral) or mental (intellectual and/or psychic) that, in relation to their age and social environment, implies considerable disadvantages for their family, social, educational, or work integration.”

It should also be noted that a requirement expressly established in article 8 of Law 19,961 is that the person with a disability to be hired must be registered in the National Registry of Persons with Disabilities, which operates in the National Honorary Commission of Disabled Persons.

Call dissemination, accessibility, and supported employment

The regulations require “adequate dissemination” of the calls made under it, informing in the call that it includes people with disabilities who have the necessary capacity and suitability for the position being sought, as well as the minimum number of positions expected to be filled through the call.

A practical problem that may arise is if no candidates present themselves, or if they do not meet the necessary conditions for the position, preventing the company from reaching the corresponding percentage. If this happens, it will be essential to be able to prove compliance with the legal requirements in the dissemination, in order to demonstrate to the Ministry of Labor and Social Security the situation and avoid the imposition of sanctions in the event of an inspection.

In this regard, at the moment, non-compliance with this regulation is framed within the general sanctioning regime. This is derived from article 3 of Law 18,651 by referring to Decree 186/004 on labor infractions under the competence of the General Inspection of Labor and Social Security (IGTSS). Likewise, article 4 of Decree No. 73/019 states that the funds collected from fines imposed by the IGTSS will be allocated to a fund that will cover the expenses of the Labor Inclusion Commission. This is without prejudice to future and eventual legal or regulatory modifications that establish specific sanctions for non-compliance.

On the other hand, in terms of accessibility, the employer must ensure the necessary conditions for the job that will be filled, for which the relevant adaptations must be made so that the worker with a disability can perform their functions correctly. In this sense, if at the time of hiring the company has not yet been able to make the adaptations, it will have a period of up to 12 months from the start of the employment relationship to do so, and must communicate this to the General Inspection of Labor and Social Security and present a plan with the measures that will be taken.

Regarding employment itself, it is envisaged that people with disabilities who are hired may receive support in carrying out their tasks, in terms of adaptation, identification of colleagues, adjustment to the workplace, etc.

This support will be provided through the figure of “Labor Operators” (specialized technicians) from the National Disability Program of the Ministry of Social Development, who will assist until the hired person can work independently. The National Labor Inclusion Commission was also created for monitoring and promoting measures that encourage the application of the Law.

Benefits for companies

In order to promote compliance, the regulations provide a series of benefits and incentives for companies that register for this purpose.

Among them is the possibility of requesting data on potential applicants from the National Disability Program (PRONADIS) before hiring people with disabilities. Furthermore, companies that carry out accessibility or adaptation works may be included in the benefits of Law 16,906 on Investments and Industrial Promotion, facilitating their financing.

Access to benefits and incentives will require registration in a registry managed by the National Employment Directorate of the Ministry of Labor and Social Security.

Particularities in terms of rights and obligations

Workers employed under Law 19,691 are subject to general labor regulations, except in cases where special regimes are provided for by particular provisions. In this sense, a difference is established in terms of dismissal.

The aforementioned Law includes them among the workers specially protected by our legal system, understanding that they are in a situation of greater vulnerability. It is established that the dismissal of any person with a disability “must be based on a reasonable cause.” This implies that it will be necessary to prove that the decision to terminate the employment was related to the employee's conduct, based on the company's needs or another reason of sufficient importance to justify the decision to terminate the employment. Failure by the employer to comply with this will result in the obligation to pay compensation of six monthly salaries, in addition to the regular severance pay that corresponds.

In line with the above, the dismissal of a worker with a disability implies that the employer must make a new hire under the terms of the same Law, with a three-month period from the departure of the dismissed worker. The company will be exempt from this obligation when the dismissal is due to the elimination of the job position.

On the other hand, regarding leaves of absence, the regulations provide for the possibility of accessing an extraordinary unpaid leave of up to three continuous or discontinuous months per calendar year due to the disability. This is in addition to the regular annual leave and any sick leave certifications. In order to take this leave, the worker must notify the employer 48 hours in advance and provide a medical certificate justifying the leave, issued by the Medical Examination Office of the Disability Evaluation Sector of the Social Security Bank.

Finally, a difference is also foreseen in terms of social security contributions. The employer's pension contributions to the Social Security Bank for workers with disabilities will have a partial exemption at the beginning and will be gradually normalized. During the first year of employment, the contribution will be 25% of the usual amount; during the second year, it will be 50%, during the third year, 75%, and once three years of work have been completed, it will be 100%. It should be noted that when a worker is hired due to the dismissal of another worker with a disability, the contribution will be made according to the corresponding percentage, continuing with the scale mentioned based on the previous employment relationship.

Final considerations

As mentioned, the regulations mentioned aim to promote the integration into the labor market and the protection of employment for people in a situation of greater vulnerability. It will be a challenge for companies to adapt to the new provisions, which is why it is extremely important to be aware of the various tools that the regulations have provided in order to promote and facilitate compliance.

Montevideo, May 2019.