While the country is at war, the number of people with disabilities is increasing. Many of those who have been discharged from military service can return to their previous place of work. However, there are cases when health conditions prevent them from performing the duties of their position. How should the employer act in such a case and what can the employee expect – read further.
Grounds for dismissal
The fact that a person is diagnosed with a disability cannot be considered by an employer as a reason for dismissal. Dismissal of an employee in the event of them being diagnosed with a disability is possible only in certain cases.
According to Article 17 of the Law of Ukraine “On the Fundamentals of Social Protection of Persons with Disabilities in Ukraine” No. 875-XII of March 21, 1991 (hereinafter – Law No. 875 ), refusal to conclude an employment contract or to promote a person with disabilities, dismissal at the initiative of the administration, transfer of a person with disabilities to another job without their consent on grounds of disability is not allowed. However, exceptions are possible when, according to the conclusion of a medical and social examination, the health status of the employee prevents the performance of professional duties, threatens the health and safety of other persons, or continuation of work or a change in its nature and scope threatens the deterioration of the health of persons with disabilities.
Employer's obligations towards an employee with a disability
After receiving the disability assessment board’s conclusion on the conditions and nature of work of an employee who has been diagnosed with a disability, the employer is obliged to consider the possibility of creating appropriate working conditions for them. When creating a workplace for a person with a disability, it is necessary to take into account the special needs of the person, as well as the recommendations of the medical and social expert commission. When the employer creates appropriate working conditions for a person with a disability, they focuses on the qualities that they possess. Such a person shows greater social activity, strives to engage in socially significant work, feels comfortable in the team, strives for development and self-realization.
The employer's decision to dismiss an employee in the event of disability being established will be considered lawful only when, due to the nature of their activity, it is not possible to create working conditions in accordance with the conclusion of the board or a decision has been made to transfer them to another job (position).
Article 19 of Law No. 875 establishes the obligation of employers to ensure the fulfillment of the standard of jobs for the employment of persons with disabilities in the amount of 4% of the average number of full-time employees of the accounting staff per year – for employers employing more than 25 people, and in the amount of one position – for employers employing from 8 to 25 people.
For failure to comply with the standard, employers, in accordance with Article 20 of Law No. 875, must pay administrative and economic sanctions, the amount of which is determined in the amount of the average annual salary for each workplace intended for the employment of a person with a disability and not occupied by them – with a number of 15 or more employees, or half of the average annual salary – with a number of 8 to 15 employees.
Employer officials may be held administratively liable for failure to meet the standard of workplaces for the employment of persons with disabilities in the form of a fine of 10 to 20 minimum wage units (UAH 170–340) in accordance with Part 2 of Article 188-1 of the Code of Administrative Offenses.
