Chumachenko A. Employer Awareness: Key Disabled Employment Obligations // Petroleum. – 2020. – № 1.

  It is unquestionably common knowledge that people with disabilities need special approach and special attitude as a vulnerable category of the population. Kazakhstan, like many other countries, establishes through its legislation the main guidelines to provide the disabled with special treatment by society, as well as the minimum guarantees to which the people with disabilities are entitled. The state also establishes special requirements and conditions applicable to disabled labour, but in practice not all employers are aware of their pertinent responsibilities. Therefore, let us review the key statutory requirements relating to disabled employment.

Employment Quota

  As one of the social protection measures against unemployment, the Employment Law sets employment quotas for certain categories of individuals. These categories include persons with disabilities who do not have medical contraindications to labour activities (i. e., those who are not prohibited to work in principle). A similar requirement is contained in the

Disabled Social Protection Law.

  The setting of quota means that the state establishes a minimum number of jobs the employers are required to ensure to employ persons with disabilities. The quota is set as a percentage of the whole staff of each particular employer, except for heavy work jobs and jobs with harmful or hazardous labour conditions (the quota takes into account the disabled persons already working for the respective employers). The general size of quotas (from 2 to 4 per cent) is determined by legislation, but specific regional quotas for specific employers are set by local executive authorities (Akimats). For example, the Mayor (Akim) of Almaty has resolved to set the following disabled job quotas:

• At organizations with 50 to 100 persons on payroll – 2% of the total payroll number;
• At organizations with 101 to 250 persons on payroll – 3% of the total payroll number;
• At organizations with 251 or more persons on payroll – 4% of the total payroll number.

  Strictly legally, employers are required to provide jobs for persons with disabilities in accordance with the established quota within 6 months of the quota establishment (for example, in Almaty – from 17 November 2017). In order for the employers to meet their quota obligations, the local employment authority forms a database of persons with disabilities registered with employment centres and in need of employment (who are issued referrals for work at respective companies within the quota). The quota requirement is deemed met by employers, if the people with disabilities are employed in vacant jobs or in those allocated under the established quota, which is to be confirmed by the employment agreement concluded for a term of at least 6 months, the employers being also obligated to submit the relevant information in the approved format to the employment centre in the region concerned.

However, it should be borne in mind that quota requirements do not apply:

• To organizations with less than 50 persons on payroll;
• To public disabled people's associations and organizations where the number of persons with disabilities is more than 20% of the average annual number of employees;
• To organizations based in the territory of populated localities where there are no unemployed working-age disabled persons who have no medical contraindications to labour;
• and In statutorily prescribed instances where special conditions of employment in office or procedure for appointment to a position are defined.

  Also, employers in the process of winding-up (cessation of business) or staff reduction/jobs displacement or experiencing a drop in the volume of production, work or services resulting in the deterioration of their economic situation are allowed not to observe the quota requirement. In those cases, the local executive authorities revise and adjust the established quotas.

Creation of Special Jobs for Persons with Disabilities

Pursuant to the Employment Law, employment authorities must arrange for the creation of special jobs to ensure employment of persons with disabilities.

  The special jobs are created by employers on a voluntary basis (or, as a minimum, the employers can negotiate the conditions beneficial for them with the authorized agencies) based on agreements entered into with employment authorities. The legislation, however, does not clarify whether the employers are in this case exempt from meeting the disabled employment quotas, or the jobs are to be created in parallel with the quotas. It should be mentioned that employers creating the special jobs are subsidized from the state budget.

  Pursuant to the Employment Law, a disabled person hired for a special job must be employed for a term of at least 12 months from the date of such job creation.

  Access to Social Infrastructure Facilities for Persons with Disabilities Pursuant to the Disabled Social Protection Law, legal entities are required, in accordance with national standards, to create conditions for persons with disabilities to have unimpeded access to public and industrial buildings, structures, and premises.

For example, the following, among other things, is required in accordance with the state regulations for the design of buildings and structures, taking into account their accessibility for the limited mobility groups of the population:

• In office buildings, persons with disabilities must be provided unimpeded access to all spaces intended for employees and visitors, where 1.2 m and 0.4 m from the floor level are considered to be the maximum and the minimum accessible heights for wheelchair users.
• Parking spaces for the personal cars of people with disabilities must be located close (50 m or less) to the building entrance accessible to the limited mobility groups of the population, i. e., equipped with a ramp. In exceptional cases, mobile ramps at least 1.0 m wide may be used in buildings. Entrance areas accessible for limited mobility groups of the population must be equipped with a canopy or a lightweight cover structure, a drainage, and, where necessary due to local climate conditions – a heating.
• The surface of pathways, sidewalks and ramps must be made of solid materials, smooth, rough-textured, gapless, no-glide when wet, and have no side slope. All safe walkways must be marked (with painted lines in yellow or distinctive surface texture).
• Swinging and revolving doors cannot be used in the paths of limited mobility groups, and doorways to premises accessible for limited mobility groups cannot have thresholds and floor elevations.

In order to ensure maximum safety for persons with disabilities in the territory of public buildings and facilities:

• Stairs must have alternate ramps or lifts, and outdoor stairs and ramps must be equipped with handrails;
• Separate toilets for wheelchair users (separately male and female) must be installed on each floor of public buildings where sanitary units are provided, or an appropriate stall in common toilets must be provided;
• Pile carpets and coconut fibre mats cannot be used in rooms accessible for persons with disabilities, and carpeting on the passage paths must be securely fixed, especially at the carpet joints and along the border of different carpeting;
• Room and office numbers must not be placed on the door itself, to ensure number visibility even when the door is open;
• Potentially dangerous objects must be fenced at the height of at least 0.1 m;
• Tactile warnings must be installed around obstacles at a distance of at least 0.6 m;
• Mounted signs must be installed at the height of at least 2 m;
• Overhanging vegetation must be trimmed at the height of at least 2 m;
• Lamp stands in the pedestrian zone must be fenced with protective decorative barriers at least 0.75 m high, or incorporated in hardscape elements at the height of at least 0.75 m.

  Kazakhstan's current regulations and standards in the area of ensuring accessibility of social infrastructure facilities for people with disabilities also contain other technical requirements regarding reliability of buildings and facilities, operational safety, etc. Where the said facilities cannot be adapted for access by persons with disabilities, the relevant legal entities must develop and implement the measures required to attend to the maximum to the needs of the disabled.

Equipment of Workplace for a Disabled Employee

  When hiring a person with disabilities, the employer is not to merely provide such person with a workplace, but must also ensure that the workplace is equipped to conform to the individual needs of the disabled employee. Pursuant to the Labour Code, the parties are to provide for the workplace equipment conditions in the employment agreement.

Special requirements to workplace equipment are established for those employees who:

• Have a complete loss of vision;
• Have a complete loss of hearing;
• Are using a wheelchair.

  These requirements are stipulated by statutory standards and obligate the employer not to just acquire special equipment to adapt for the needs of employees with disabilities (e.g., computer blind-aid sets for blind employees), but also to take other measures, such as place (arrange) the production equipment and furniture used by the employee in a certain manner, fulfil certain sanitary requirements, provide a sign language interpreter, etc.

Labour Regime

  When hiring employees with disabilities, the employer should not forget that the Labour Code provides for some indulgences and benefits concerning working and rest schedule and labour conditions, specifically:

• Employees with disabilities cannot work overtime;
• Cumulative work time accounting cannot be applied to group 1 disability employees, other disability groups falling within this method of accounting only if not prohibited such regime based on an opinion issued by occupational pathology expert commission;
• Employees with disabilities can work nights only on their written consent, unless they are prohibited such work for health reasons according to a medical opinion;
• Group 1 disability employees cannot work on rotation from the date of submission of the relevant medical opinion, while other disability groups may work on rotation unless contraindicated based on a medical opinion;
• Employees with disabilities may be sent on business trips, unless prohibited for medical reasons, however, they may refuse to travel;
• Group 1 and 2 disability employees enjoy a reduced work time duration of 36 or less hours per week;
• Group 1 and 2 disability employees are granted additional paid annual leaves of minimum 6 calendar days.

Individual Rehabilitation Program

  The employer is statutorily obligated to compensate employees for the harm to their health in connection with the performance of labour duties. If the harm has entailed health problems with bodily dysfunction and, as a result, assignment of a disability status to the employee, the employer would also be obligated to finance the rehabilitation measures prescribed by the employee's individual disability rehabilitation program (vocational training or retraining; creation of a special workplace to employ the affected employee). The individual rehabilitation program is prepared following a medical-and-social expert examination of the affected employee and determines a complex of rehabilitation measures, including medical, social and professional rehabilitation measures, aimed at the rehabilitation and compensation of the disordered and lost functions of the organism. According to the Rules for Providing Disabled Persons with Prosthetic and Orthopaedic Aids and with Technical Support (Compensatory) Equipment, as well as the Rules for Providing Disabled Persons with Special Conveyance Vehicles, the employees being assigned the disability status due to on-the-job injuries or occupational diseases occurring through employer's fault are provided with wheelchairs, prosthetic and orthopaedic aids, deaf and blind aids and compulsory hygiene supplies in accordance with the individual disability rehabilitation program.

  Presumably, employers are to meet all of the above requirements regardless of the possible adverse implications to impend in case they fail to meet or improperly meet them. Meantime, these implications may be of various nature, ranging from disputes with disabled employees to employer's administrative liability in cases stipulated by legislation (for instance, if the employer fails to fulfil the statutory requirements regarding disabled persons professional rehabilitation after on-the-job injury or occupational disease occurring through employer's fault and/or fails to ensure social infrastructure access for the disabled and/or fails to provide social rehabilitation for people with disabilities under the individual disability rehabilitation programme, this entails administrative liability in the form of a fine of up to 400 monthly calculation indices, and in case of failure to meet the disabled jobs quota the imposable fine may be up to 10 monthly calculation indices). Still, there is a room for hope that when choosing whether or not and how diligently to observe the established requirements, the employers would primarily think not of the gravity of imminent consequences, but of the moral component of the matter, and strive to create most favourable conditions for the vulnerable categories of the population.