• Insights

Rules for employing disabled people in Kazakhstan

Written by
AEQUITAS Law Firm, the top labour and employment practice in Kazakhstan.
Authors
Alexandr Chumachenko
Senior Associate - Kazakhstan
AEQUITAS Law Firm
Kazakhstan
31.07.17
5
Kazakhstan, like many other countries, has laws to protect the rights of disabled people. From 1 January 2018, several provisions of the Law No. 482-V on Employment, of 6 April 2016, come into force to offer additional protection for disabled people in the workplace, so it is timely to give an overview of employer obligations to employees with disabilities.

There are two laws that impose quotas for the employment of disabled people on employers. The first is Law No. 482-V on Employment, of 6 April 2016, which imposes quotas for the employment of certain categories of individuals, one of which is people with disabilities who are not prohibited from working for medical reasons. The second is Law No. 39-III on the Social Protection of Persons with Disabilities of 13 April 2005.

The setting of quotas ensures that employers must offer a minimum number of jobs to people with disabilities. The quota is set as a percentage (between 2% and 4%) of each employer’s staff, not counting roles involving heavy work or work in harmful or hazardous conditions. If the employer already employs people with disabilities, their employment counts towards the quota. Specific regional quotas for certain employers are set by local executive authorities (‘Akimats’).

The requirement to fulfil the quota does not apply to:

  • organisations with fewer than 50 paid employees;
  • public associations of people with disabilities;
  • organisations where the number of people with disabilities is more than 20% of the average annual number of employees; and
  • organisations in localities where there are no unemployed working-age people with disabilities.

 

The requirement also does not apply to a position for which procedures or conditions of appointment are provided by law.

Employers are also allowed not to comply with the quota requirement if they are:

  • winding up the business;
  • reducing or reallocating staff; or
  • experiencing a drop in production, work or services, with a resultant deterioration of the employer’s economic situation.

 

In the above cases, the Akimats revise and adjust the quota and the employers may be excluded from the quota requirement altogether, or it may be adjusted.

Employers must create the quota-required jobs within six months of the date of approval of the quota by the Akimat.

Creation of Special Jobs

From 1 January 2018, new legal provisions will apply, obliging employment authorities to organise for the creation of special jobs for disabled people.

‘Employment authorities’ is the collective name for state bodies exercising control over the implementation of legislation on employment. The Ministry of Labor performs such functions at the state level. Local employment authorities, in turn, are the structural divisions of the Akimats. They focus on compliance with legislation at the local level.

The employment authorities will make agreements with employers that volunteer to create the positions with subsidies from the State. The agreements will be probably made in a form approved by the relevant authority but may contain conditions that meet the interests of the employer and that are specific to creating the jobs.

The law provides that a person hired for a special job must be employed for not less than 12 months from the date of creation of the job.

It is not yet clear how this law interacts with the rules about quotas. The legislation does not specify whether employers that create special positions will be exempt from meeting their quota; whether the jobs created will count towards fulfilment of the employer’s quota; or whether this regime simply runs parallel to the quota requirements. It is possible that this is a matter about which employers may negotiate as part of the agreement.

Equipment of a Disabled Employee’s Workplace

There are special requirements for employers that hire disabled employees with a complete loss of vision or hearing, or who use a wheelchair. In such cases, the employer must equip the person’s workplace to meet their individual needs.

The equipment required is defined by law. The standards go beyond obliging the employer to buy special equipment (e.g. computer blind-aid sets for blind workers). Employers must also make other adaptations, for example, making special arrangements for equipment and furniture used by the employee to be located in a way that is helpful to the employee. They must also comply with certain sanitary requirements and provide sign language interpreters.

The ‘Labour Code’ (Law No. 414-V of 23 November 2015) requires that the parties specify the disabled employee’s requirements in the employment agreement.

Working Conditions

The ‘Labour Code’ provides different working conditions for disabled people. There are some that apply to all disabled people. These are that disabled employees:

  • must not be required to work overtime;
  • may only be involved in work at night (i.e. between the hours of 22:00 and 06:00) if they give written consent and are not prohibited from doing so for medical reasons;
  • may be sent on business trips unless prohibited from doing so for medical reasons, but they are entitled to refuse to travel.

 

The ‘Labour Code’ divides disabled people into three groups depending on their health status, with people belonging to the first group (Group 1) the most affected by their disability. Some working conditions apply differently depending on the group to which the employee belongs.

Employees in Group 1 must not be involved in roles with ‘cumulative work time recording’, in other words, where instead of counting how many hours were worked each day, a reference period of, for example, a month might be used and the working time requirements would only need to be fulfilled over the month as a whole. Employees in Groups 2 and 3 may be involved in such roles unless this is prohibited based on an occupational pathology expert commission’s report.

Secondly, employees in disability Group 1 must not be required to work on rotation (i.e. away from their permanent place of residence, without the possibility of commuting daily). Those in other disability groups may, unless there is a medical reason why not.

Finally, employees in Groups 1 and 2 must:

  • not be required to work for more than 36 hours per week; and
  • receive at least six extra days of paid annual leave.

 

Individual Rehabilitation Programme

If an employee’s health is harmed in connection with the performance of his or her job, the employer must compensate the employee for the harm. The harm might result from an on-the-job injury or a condition contracted because of the employee’s occupation. If the harm results in the employee being assigned a disability status, the employer must also finance rehabilitation measures prescribed for the employee under an individual disability rehabilitation programme.

Programmes are developed after medical and social assessment of the affected employee. Programmes aim to rehabilitate and compensate employees using medical, social and professional measures (e.g. vocational training or retraining, or creation of a special workplace for the employee).

An employer may be obliged to provide an employee with certain types of equipment under a programme. The equipment might be:

  • wheelchairs or other mobility devices;
  • prosthetic or orthopaedic devices, or both;
  • deaf or blind aids, or both;
  • devices for assisting the employee with personal hygiene.

 

Consequences of failure to comply

Penalties apply to an employer that fails to comply with any of these obligations. Penalties range from disputes with disabled employees to administrative penalties. An employer that fails to meet its jobs quota may be fined up to 20 Monthly Calculation Index units (‘MCI’) (in 2017, KZT45,380). An employer that fails to comply with the requirements to conduct vocational training or retraining of employees with disabilities or create special workplaces for their employment (under the established rehabilitation programme) may be fined up to 600 MCI (in 2017, KZT1,361,400).

Conclusion

The law imposes these obligations on employers to protect the rights of disabled people and help them overcome disadvantage. The new provisions that apply from the beginning of 2018 will enhance employment opportunities for disabled people, even if the practical application of the provisions requires clarity. Employers should meet their obligations under these laws not just to avoid penalties, but to contribute to creating more favourable conditions for vulnerable people.