By: Norma Yaneth Villalobos
In El Salvador, the inclusion of persons with disabilities is regulated by a Special Law that was approved by Legislative Decree No. 672 of June 22, 2020 and published in the Official Gazette No. 178 Volume 428 of September 3, 2020.
The Special Law for the Inclusion of Persons with Disabilities seeks to respond to the commitments assumed by the State of El Salvador in the Constitution of the Republic and the international instruments to which it is a party, which demand to effectively guarantee the enjoyment of the rights of persons with disabilities in equal conditions with other persons.
In this sense, this law establishes the minimum standards to eliminate the barriers that may hinder the full development of persons with disabilities; however, it also represents a challenge not only for the compliance of the international commitments acquired by the State but particularly for the actors involved in their compliance.
This article makes special reference to the obligations attributed by the law to one of the parties obliged to comply with it, which are private employers, who assume commitments ranging from meeting a quota for hiring people with disabilities in the workplace, adapting facilities, and creating full accessibility of the work environment that favors inclusion, as well as guaranteeing their job stability, to mention a few.
The following are some relevant aspects considered by the Law, applicable to private employers:
Who are considered persons with disabilities?
Those who have long-term physical, psychosocial, intellectual, or sensory impairments that, when interacting with various barriers, may prevent or reduce their full and effective participation in all areas of society, on an equal basis with others.
According to the Law, the disability of a worker must be certified through the National Registry of Persons with Disabilities or through the Single Disability Card, which must be issued by the National Council for the Inclusion of Persons with Disabilities (CONAIDP). Until the mentioned card is implemented, the disability must be proven through the disability certification issued by the Instituto Salvadoreño de Rehabilitación Integral (ISRI) or the Instituto Salvadoreño del Seguro Social (ISSS).
What are the main obligations imposed by the Law to Private Employers?
– To hire at least one (1) person with a disability for every twenty (20) workers in their service, ensuring decent work and gender equity for their hiring. In the case of companies with fewer than 20 workers, they are exempted from this obligation.
– Ensure the maximum personal and professional development of people with disabilities, assigning a job compatible with their abilities, potential, and skills.
– Create conditions of full accessibility of the work environment to favor the labor inclusion of people with disabilities, including providing them with the resources and technical and technological implements for the execution of their work.
– Make reasonable adjustments in the workplace to facilitate the fulfillment of work responsibilities.
– Guarantee job stability to workers with disabilities. In case of dismissal, the employer must prove that it is not due to their disability.
– Grant leave of absence for workers with disabilities for treatment, rehabilitation or other circumstances related to their condition. This right is also granted to workers who have persons with disabilities under their responsibility, and they must be provided, when duly justified and their presence is required, the necessary time to accompany them in the processes of health, education, and others.
What can Employers do if they do not have applicants with disabilities?
When the hiring companies or institutions do not have applicants, the Ministry of Labor and Social Welfare (MINTRAB) and the National Council for the Inclusion of Persons with Disabilities (CONAIPD) will send candidates that meet the profile established by the company, and in the absence of these, a statement will be issued by the MINTRAB, stating that, at the time of the request, there were no applicants in the respective registry that meet the required profile.
If a suitable profile is not found to perform the work required by the Company, it may be exempted from hiring persons with disabilities, after qualification by the Ministry of Labor and Social Welfare, and in that case, it must contribute an amount equivalent to the minimum monthly salary in force for the commerce and services sector of the number of employees that should be hired.
The same obligation will have those companies that due to their commercial line of business or economic activity it is not possible to comply with the quota of hiring people with disabilities established by law, which must be qualified by the MINTRAB.
Incentives for compliance with the Law
The Law grants the following incentives to employers who hire persons with disabilities, which may be enjoyed if the beneficiary has not been sanctioned for any of the infractions contemplated in the Law:
Income Tax (ISR) deduction. Employers who comply with the labor hiring quota may deduct from the ISR all the investment aimed at the implementation of reasonable accommodations and universal design, for the optimal performance of persons with disabilities hired.
Preference for hiring in the Public Administration. In the processes of public bidding or free management regulated by the LACAP, in which the result of the evaluation is a tie, preference will be given to the bidder that complies with the hiring quota of persons with disabilities.
The employer must prove this circumstance with the respective certificate issued by the Ministry of Labor and Social Welfare.
What is the sanction imposed by the Law to Employers who do not comply with the hiring quota of persons with disabilities?
The Law considers as a very serious offense that an employer does not comply with the hiring quota of persons with disabilities and sanctions this non-compliance with a fine of 7 to 9 minimum salaries of the commerce and services sector.
In accordance with the provisions of the Law, for the determination of penalties, criteria such as the intentionality of the offender, recidivism, economic capacity, the seriousness of the damage caused, among others, will be considered.
How is the hiring of persons with disabilities proven?
According to the Law, the hiring of persons with disabilities must be proven by the employer through the National Registry of Persons with Disabilities or through the Single Disability Card, which must be issued by the CONAIDP.
Since the Single Disability Card has not yet been implemented, the Law in its transitory provisions establishes that, from its entry into force until the implementation of the mentioned Card and the National Registry of Persons with Disabilities, the hiring of persons with disabilities must be proven by the employer through the disability certification issued by the Salvadoran Institute of Integral Rehabilitation (ISRI) or the Salvadoran Institute of Social Security (ISSS).