By: Carlos Rodriguez
El Salvador ratified Convention 111 of the International Labor Organization (ILO) in 1995, which in its Art 5, establishes that special measures for the protection of vulnerable people, including people with disabilities, are not discriminatory; therefore, it has enacted a diverse legislation that tends to apply these favorable measures for people with disabilities.
In 2000, the Law for Equal Opportunities for Persons with Disabilities was enacted, which already established various aspects of protection, including the requirement for employers to hire one person with a disability for every 20 employees working in their company.
In terms of architectural accessibility for people with disabilities, the General Law for the Prevention of Risks in the Workplace and the Technical Regulations on Accessibility, Urban Planning, Architecture, Transportation and Communications, which have been in force since 2010, establish that all workplaces, and in particular the circulation routes, doors, stairs, restrooms and workstations, must be equipped for people with disabilities; In the same sense, they require employers to specifically guarantee the protection of workers who, due to their personal characteristics or known biological condition, including people with disabilities, are especially sensitive to occupational hazards, which must be reflected in emergency plans, risk control matrices, training and all occupational health and safety actions carried out.
In 2020, the Special Law for the Inclusion of Persons with Disabilities was enacted, which repealed the 2000 law and establishes that the State will help guarantee the elimination of barriers that hinder the full development of persons with disabilities, promoting the implementation of universal design in private, municipal and public sector entities.
This new law establishes that every private employer has the obligation to hire at least one person with a disability for every 20 workers in its service, so now there must be more people with disabilities in the company than under the previous regulation. The quality of disabled is proved with the Certification of Qualification of Disability of the Salvadoran Institute of Social Security (ISRI); as well as through the National Registry of the Person with Disability or through the Unique Card of Disability. In the same sense, it also emphasizes that the work of people with disabilities must be compatible with their abilities and skills; therefore, based on the evaluation of occupational risks, they should not be assigned activities that may be harmful to them and that the company must provide them with the technical and technological resources for the execution of their work.
This new Law regulates 2 aspects that are completely unprecedented:
- Student scholarships, which must be covered by any employer that due to its commercial line of business or economic activity is not able to meet the established quota for hiring people with disabilities, after qualification by the Ministry of Labor and Social Welfare, or that has not found the ideal profile for vacant positions, and for this reason must contribute an amount equivalent to the minimum monthly salary in force in the trade and services sector of the number of employees that should be hired.
- The guarantee of labor stability, which it establishes for persons with disabilities, and implies, according to our legislation, that the dismissal by the employer cannot produce effects and, therefore, will entitle the disabled worker to file a lawsuit claiming his reinstatement and the unearned wages attributable to the employer. However, as this would be determined until the final judgment, it also allows requesting, as a precautionary measure, the provisional reinstatement while the process is being processed, in case it can be proven that the life, health and physical integrity of the worker may be affected, because he/she does not have social security coverage, from the date of the de facto dismissal. This provision also establishes that, in no case, absences from work of a person with disability due to leaves of absence for treatment, rehabilitation or other circumstances related to his condition, will be a reason to affect his stability and labor development or reduce his labor benefits.
As for the sanctioning framework, it has also implied an increase in the fines that could be imposed, ranging from 4 to 6 minimum wages in case of non-compliance with the accessibility aspects and from 7 to 9 in case of non-compliance with the percentage of persons with disabilities that must be hired in accordance with the total number of workers that the company has.
The Law also establishes some incentives for employers who comply with it, such as:
- Income tax deduction of any investment aimed at the implementation of reasonable accommodations in favor of persons with disabilities.
- Preference in public bidding processes or free management in which the result of the evaluation of the contracting entity is a tie.
- Tax exemption for all technical aids purchased or imported by a person with a disability or his/her family members for their personal use.
It is clarified that the law expressly determines that, to enjoy these benefits, the company must not have been sanctioned for any of the infractions contemplated therein, during the corresponding fiscal year.
Finally, it is important to note that there have been significant advances in the labor protection of persons with disabilities, in terms of legislation, however, it cannot be denied that these types of regulations are among the most difficult to comply with in labor matters and therefore many sanctions are being applied to employers, due to the failure to meet the required hiring percentages of persons with disabilities due, in many cases, to the fact that the persons with disabilities that are referred do not meet the profiles of the jobs for which they are applying.
Therefore, a comprehensive effort must continue to be made, in addition to the reinforcement of the labor inspection system, including the strengthening of the employment intermediation and professional training system, in order to adapt the profiles of persons with disabilities in the databases of the employment intermediation system to the requirements of job vacancies in companies and thus be able to continue contributing to the comprehensive development of persons with disabilities and avoid sanctions that become recurrent.