Employment of severely disabled employees - considerations for employers

By Karina Bischoff, Dr. Kathrin Kruse, Marnie Plehn, Dr. Artur-Konrad Wypych, Julia Gottinger, Dr. Catharina Klumpp, LL.M.

06-2020

When considering the employment of disabled employees, employers are faced with a wide range of questions: Am we allowed to ask about a disability? What measures should we take to protect the concerned individuals? What do we have to consider if we decide to terminate the employment relationship? In order to assist with your questions and concerns, we have prepared a brief overview of the most important aspects to be considered.

Employment obligation

If an employer has more than 20 employees, at least five per cent of the job positions should be occupied by severely disabled employees. The term severe disability refers to a deficit in one or more areas of functioning that significantly limits (at least by 50%) an individual's performance of major life activities. Individuals with a limitation of their performance of major life activities by at least 30% can get the status of an employee comparable to a severely disabled person.

The number of employees has to be reported to the Federal Employment Agency annually (by 31 March of the following year), and if the quota has not been reached, a levy must be paid to the Integration Office (currently between 125€-320€ per month per unoccupied compulsory job).

Hiring

Before any recruitment exercise, employers must examine whether the vacancy can be occupied by a severely disabled candidate, and cooperation with the Federal Employment Agency is recommended to assist with this process. If an employer fails to comply with its respective obligation and the application of a severely disabled person is rejected, the company may be exposed to the risk of a discrimination complaint. If an employer does not have appropriate proof of the examination exercise undertaken, it is likely that the employer will not be able to defend itself successfully and may face a claim of financial compensation of damages.

Right to ask about disability

The employer should not question applicants about severe disabilities in the application procedure, and as such, prospective employees are not obligated to tell the truth. If an applicant answers questions regarding a severe disability truthfully and is not successful in the remaining application process, there is a high risk that the individual will subsequently file a complaint of discrimination. In such cases, the employer’s question about the potential disability implies that this was the reason for the non-employment, and this assumption will be hard to refute.

However, questions regarding severe disabilities are admissible during an existing employment relationship. When the employment relationship has already been established, the employer has a legitimate interest in asking such questions as it will help ensure compliance with its obligations.

Working conditions

Severely disabled employees are entitled to have access to a disabled-friendly employment environment, and additional support services that go beyond the employers' standard obligations of protection and consideration which are applicable to all employees. Such measures include, among other things, the appropriate adaptation of the workplace and the working environment, e.g. through the use of appropriate work chairs, barrier-free access, adjustment of the location, and/or adjustments to the duration of working hours. Appropriate financial support in respect of such employees can be applied from the Federal Employment Agency and the Integration Office.

Additional leave

Severely disabled employees are entitled to an additional five days of vacation (based on a five a -day working week) per year. The number of additional days for part-time employees will be determined on a pro-rata basis.

Company co-determination

If an employer has five or more severely disabled employees, a severely handicapped representative body must be established. The task of this body will be to integrate severely disabled employees into the company and to represent their interests. In particular, the representative body must be involved in the dismissal of any severely disabled employees.

Protection against dismissal

If severely disabled employees are employed for more than six months, they are entitled to special protection against dismissal. This additional protection includes a prohibition on illness being used as an objective reason for termination.

Furthermore, the representative body for severely disabled employees must be involved, and the approval of the Integration Office must be obtained in advance. If the employer did not comply with its respective obligations, the termination will be deemed invalid – even if the employer was not aware of the severe disability of the employee (in which case, the employee is obliged to inform the employer accordingly within three weeks after receipt of the notice of termination). In such circumstances, the employer should take further precautionary measures and ask the relevant bodies and authorities for their approval, even if a final decision has not yet been made (and only the respective application of the employee has been filed).