Legal instruments in spanish legislation to promote the employment of workers with visual impairments in the spanish labour market

The legal provisions included in Spanish legislation aimed at promoting, regulating and consolidating the hiring of people with disabilities are the following:

The legal provisions included in Spanish legislation aimed at promoting, regulating and consolidating the hiring of people with disabilities are the following:

1 - Reserved positions set aside for people with disabilities

2 - Measures to promote the hiring of workers with disabilities:

    a) Temporary contracts as a means of boosting employment
    b) Work placement contracts
    c) Replacing workers who are temporarily incapacitated

3 - Measures to boost permanent contracts

4 - Infringements and sanctioning processes

5 - Adjustments to eliminate barriers

6 - Reduced retirement age

7 - Assistance for unemployed people with disabilities to become self-employed

8 - Special employment centres

    a) Requirements and assistance
    b) Special employment conditions
    c) Co-operation between sheltered employment centres and ordinary companies

1 - Reserved positions set aside for people with disabilities

A - Obligation to reserve positions - content.

The principle of employees having the right to select their employers is limited by the obligation to observe measures that set aside reserved jobs for people with disabilities.

Both public and private companies that employ 50 or more employees, therefore, are obliged to observe the rule that at least 2% of the employees in their workforce are workers with disabilities. The calculations are based on the total payroll of the company and regardless of the number of facilities the company has and the type of employment contract between the employees and the company.

In civil service exams to join the workforce in the national government, autonomous regional communities, local authorities, public institutions and the social security system, people with disabilities must be admitted on the same terms as other examinees. The aptitude of the individual to exercise the functions corresponding to the position is determined, if necessary, by means of a binding decision taken by a multidisciplinary team prior to sitting the entry exams.

Measures are in place to set aside 5% of all existing vacancies until the figure of 2% of all national government employees has been attained.

In addition, three per cent of the total number of positions for notary public and the commercial property registrars workforce that are filled by means of civil service exams are reserved for people with disabilities.

Furthermore, public authority contracting bodies may include in their terms and conditions clauses indicating that preference will be given in the awarding of contracts to companies whose workforce, when demonstrating their technical capacity, includes no less than 2% of workers with disabilities.

B - Exemptions from the obligation.

Public and private companies may, in exceptional circumstances, be granted either full or partial exemption from the obligation to employ people with disabilities through agreements included in the collective bargaining process for nationwide exemptions or, if the exemption is not to be applied nationally or no such collective bargaining takes place, through the voluntary choice of the employee and provided that at least one of the alternative measures is applied. Companies must apply to the competent public employment services for a declaration of exemption prior to adopting any alternative measures. The cases in which exemption can be granted are the following:

a) When the failure by the company to employ a person with disabilities is due to the fact that the competent public employment services are unable to fill the position offered due to a lack of job seekers.

b) When questions related to production or organisation, or of a technical or economic nature, make it especially difficult for the company which is obliged to do so to hire workers with disabilities to join its workforce, and the company in question can prove this is the case.

The declaration of exemption is valid for a period of three years from the date on which the final decision is taken. Following this period companies must apply for a new declaration should the main obligation still be enforceable.

C - Alternative measures

The following are the alternative measures companies may adopt to abide by the obligation to reserve jobs for people with disabilities:

a) Enter into a business or civil contract with a with a special employment centre or with a self-employed worker with disabilities for the supply of raw materials, equipment, capital goods or any other type of goods necessary to enable the company which chooses this option to perform its main activity.

b) Enter into a business or civil contract with a special employment centre or with a self-employed worker with disabilities for the provision of external or complementary services to those associated with the main activity of the company.

c) Set up a work enclave, having previously entered into the corresponding contract with a special employment centre.

The annual volume of the alternative measures must be at least three times the public income indicator with multiple effects for each employee with disabilities below the 2% threshold who has not been employed.

d) Make donations or carry out sponsorship, provided these are of a monetary nature, in order to develop actions aimed at integration in the workplace and job creation for people with disabilities. The organisation benefiting from such actions must be a foundation or other public utility organisation whose social purpose is, among others, vocational training, integration in the workplace or job creation for people with disabilities and the aim of the donation or sponsorship must be the creation of jobs for people with disabilities and, ultimately, the integration of these people in the labour market. In addition, donations may be made or sponsorship arrangements entered into in order to fund projects aimed at developing Paralympic sport by means of reaching the necessary agreements with the Spanish Paralympic Committee, the State Social Services, Family and Disability Department or the Spanish Sports Council, provided that these projects incorporate programmes and actions designed to promote integration in the labour market, employment-related training or placement for sportsmen and sportswomen with disabilities.

The annual volume of this alternative measure must be at least one and a half times the public income indicator with multiple effects for each employee with disabilities below the 2% threshold who has not been employed.

D - Infringements and sanctions

Infringement Type of offence Sanction
Breach of obligation to employ the necessary percentage of workers with disabilities or implement alternative measures Serious Fine of between 300.52 and5 005.06 euro
Unilateral and discriminatory decision related to salaries, working hours, training or promotion Very serious Fine of between 3 005.07 and 90 151.82 euro

2 - Measures to promote the hiring of workers with disabilities

The measures adopted to increase temporary hiring of workers with disabilities are as follows:

- Temporary hiring as a means of boosting employment
- Work placement contracts with special conditions
- Replacement of employees who are temporarily incapacitated

1 - Boosting temporary employment

Temporary employment can be used as a way to boost employment. The following are the requirements that must be fulfilled to hire employees under these conditions:

- Employees must be offered full-time employment through a job centre and the contract must be entered into in writing and using an official template provided by the employment services.
- Employers must not have paid off employees for this purpose, unfairly dismissed employees or declared an adjustment of employment levels after the 1st of January 2005.

The length of the contract must be no shorter than 12 months and no longer than three years. If the contract is for a period that is shorter than the maximum, it may be extended prior to its termination for periods no shorter than 12 months.

Once concluded, the employee has a right to receive financial compensation equivalent to 12 days' salary for each year worked. This financial compensation is not subject to social security payments due to its compensatory nature.

The benefits associated with employing people with disabilities under these contractual arrangements are:

  • A 75% reduction in the company's social security contributions for common risks and contingencies for a maximum of three years, regardless of the number of employees on the payroll. This reduction increases to 100% in the case of the first employee with disabilities taken on in any fashion by a company that has not had employees with disabilities since the 1st of January 2004:
  • In the case of contracts entered into with women with disabilities under the age of 45, the reduction is 80%. For contracts entered into with women with disabilities over the age of 45, the reduction is 90%

The right to these reductions in contributions is lost automatically if the company eliminates the job during the period of validity of the contract entered into under these job creation measures. The company must pay the set contribution from the time the position is eliminated.

The aforesaid reductions shall not be applied in the following cases:

    - Apprenticeship contracts

    - Contracts entered into with workers who were employed in the same company after the 1st of January 2005.

    - Contracts involving the spouses, direct family members from a previous or following generation or any other blood relative or in-law relative, up to and including the second degree, of the impresario or those holding management positions or board positions.

If, upon its conclusion or the conclusion of an extension, a temporary contract is modified to become a permanent contract, and provided that the employee continues to meet all the criteria set down when he or she was hired (except the condition that the person be registered as unemployed), a subsidy amounting to 3 908.58 euro shall be made available. In addition, there will be a reduction in the employee's social security payments (including work-related accidents and illnesses and joint collection) for the entire duration of the contract. This reduction shall be 70% if the employee is under 45 years old and 90% if the employee is more than 45.

Companies may also apply for subsidies to make adjustments to the workplace and to supply personal safety equipment.

2 - Work placement contracts

When hiring workers with disabilities on a work placement contract, the following should be taken into account:

a - Employing a person with disabilities on a work placement contract can be done provided that person obtained the qualification that enables him or her to perform the job no more than six years prior to the date of employment. Companies that employ a worker with disabilities on a full-time work placement contract enjoy a 50% reduction in their social security contribution for common risks and contingencies.

b - Work placement contracts may be entered into with workers with disabilities regardless of their age. The maximum duration of the contract is four years, depending on the type and degree of disability and the characteristics of the training process.

If the employee on a training contract has a mental disability, the theoretical training may be replaced, either completely or partially and upon the drawing up of a report by the multidisciplinary assessment team, with rehabilitation or personal and social adjustment at a psychosocial centre or socio-laboral rehabilitation centre.

Companies that enter into a work placement contract benefit from a 50% reduction in their social security contributions. Furthermore, workers with disabilities hired on a work placement contract will not be included in the calculation to determine the maximum number of contracts of this type that a company may enter into based on its total payroll.

3 - Replacing workers who are temporarily incapacitated

If a worker with disabilities is employed on an interim contract to replace another worker with disabilities whose work contract has been suspended due to temporary incapacity, the employer benefits from a 100% reduction in company social security contributions for the period this situation lasts, including for work-related accidents and illnesses and joint payment.

3 - Measures to boost permanent contracts

Permanent contracts for unemployed workers with disabilities are promoted through the possibility of entering into a "Permanent Employment Promotion Contract".

In order to facilitate permanent contracts for workers with disabilities, and their joining work co-operatives as partners, the following assistance is provided:

a) Subsidy amounting to 3 907 euro for each full-time contract entered into with a worker with disabilities. If the contract is part-time, the subsidy will be reduced proportionally in accordance with the number of working hours agreed upon.

b) Reductions in the employee's social security payments for all contingencies, including the work-related accidents and illnesses quota, the joint payment contribution, unemployment, Social Guarantee Fund, vocational training, etc. These reductions amount to the following:

- 70% in the case of workers with disabilities under the age of 45 and 90% in the case of women with disabilities;

- 90% in the case of contracts with workers with disabilities over the age of 45 and 100% in the case of women with disabilities;

c) Assistance to facilitate training or vocational retraining for those workers with disabilities who are hired. This is carried out through agreements between the employee and the National Public Employment Service as part of the programmes established under the National Training and Work Placement Plan.

d) Assistance to carry out adjustments to the workplace or provide essential personal safety equipment, up to a maximum of 910.52 euro, in order to avoid accidents in the workplace or eliminate barriers that impede or hinder the worker with disabilities in the performance of his or her job. The Employment and Social Security Inspectorate must issue a report confirming the need for adjustment or special personal safety equipment. If the employee does not apply for this subsidy the employer may do so.

4 - Infringements and sanctioning processes

Failure on the part of the employee to comply with its obligations regarding stable employment for the workers with disabilities it hires will result in a requirement to return to the public Treasury the amounts received and the corresponding interest.

In addition, obtaining or benefiting from subsidies fraudulently, failure to use subsidies or the use of subsidies for purposes other than that for which they were granted (in the case of subsidies for adjustments to the workplace or the provision of personal safety equipment), may be considered a very serious offence under employment legislation. In addition to being forced to return the amounts received fraudulently, a fine of between 3 005.07 and 90 151.82 euro may be imposed and the company may be denied access to these benefits for a maximum of one year.

Furthermore, the employer must guarantee the protection of those employees that are, due to their particular personal circumstances (physical, mental or sensorial disability), especially vulnerable to work-related risks. The employer is obliged to take all necessary preventive and protective measures and may not employ workers in positions that are incompatible with the personal circumstances of the employee.

Infringement Type of offence Sanction
Employing workers with disabilities in positions that are unsuitable Serious Fine of between1 502.54 and30 050.61 euro
Employing workers with disabilities in positions that are unsuitable and placing them - and other employees or people related with the company - at risk Very serious Fine of between30 050.62 and 601 012.10 euro

5 - Eliminating barriers

To make sure employees with disabilities are able to perform their work-related functions, their place of work, as well as access doors, passageways, staircases, toilet facilities and workstations must be adapted to allow them to do so. Adjustments to workplaces may be subsidised by the National Public Employment Service.

Workers with disabilities who have a labour relation with the owner of premises enjoy the right to have the premises adapted. They also have the right to adapt premises which they own, rent, sublet or lease.

6 - Reduced retirement age

Those employees included in the general tax and social security regime and the special regime for employees in the coal mining, fisheries and agriculture sectors who carry out paid employment and, at the same time, are able to demonstrate a degree of disability equal to or higher than 65%, enjoy the option of a reduced retirement age.

In this respect, the normal retirement age required in order to enjoy a pension (65 years) is reduced by a period equivalent to the result of applying coefficients to the period of time that the person has been employed, provided that the employee is able to demonstrate the following degrees of disability during the time he or she was employed:

a) Equal to or higher than 65%: a coefficient of 0.25 is applied.

b) Equal to or higher than 65% and in the case that the person is able to demonstrate the need for support from a carer in order to carry out essential daily duties: a coefficient of 0.5 is applied.

In order to calculate the period during which the employee has been employed and to apply the aforesaid coefficients, those periods in which the employee was absent from work shall be subtracted from the overall period, except in the following cases:

a) Doctor's orders due to a common or work-related illness or due to an accident, regardless of whether the latter is work-related or not.

b) Periods during which the employment contract was suspended due to maternity leave, adoption leave, fostering leave or health risks during pregnancy.

c) Those periods allowed by labour legislation and with entitlement to remuneration.

Payments are deemed to have been made for the time which is subtracted from the normal retirement age for the sole purpose of calculating the percentage that is applicable to determine the amount of the pension.

Both the reduction in the retirement age and the method of calculation, for the purpose of payment, of the period of time it may be reduced are also applicable in the case of the retirement of workers in any other social security regime.

For those workers with disabilities who can demonstrate a degree of disability equal to or higher than 65% and who, as a result of being a member of any employees' mutual society on the 1st of January 1967, have the right to an early retirement pension from the age of 60, the aforementioned coefficients are applied to determine the reduction coefficient for the amount of the retirement pension that may be paid.

The same rule is applied in the case of workers with a disability equal to or higher than 65% who wish to take early retirement from the age of 61 upwards who were not members of a mutual society but who meet the remaining requirements.

7 - Assistance for unemployed people with disabilities to become self-employed

Assistance and subsidies are offered by the National Public Employment Service for the purpose of funding business projects put forward by unemployed workers with disabilities who wish to establish themselves as self-employed. In addition to the possibility of receiving their full entitlement to unemployment benefit in one single payment, they include:

a) Part-payment of the interest accrued on loans obtained from credit-granting bodies that have entered into an agreement with the Ministry of Employment and Social Affairs. This subsidy consists of a maximum of three percentage points of the interest rate set by the body granting the loan, payable in one single payment and based on the amount calculated had the subsidy been accrued each year for which the credit was granted and including any potential grace period. This amount may not exceed 4 507.59 euro except if authorised by the Ministry of Employment.

Reduction in contributions

Persons with disabilities who register as self-employed workers enjoy a 50% reduction in their social security contribution, based on the quota calculated by applying the current rate established at any time for the special regime for self-employed workers to the minimum contribution amount, for a period of three years from the date on which they register as self-employed.

8 - Special employment centres

People with disabilities who are unable to perform work under normal conditions, either temporarily or permanently, due to the nature or consequences of their disability, should be employed in Special Employment Centres. The labour relation between the employee with disabilities and the Centre is different.

Special Employment Centres are those centres whose main purpose is productive work in regular market conditions. The aim is to guarantee remunerated employment or provide personal and social adjustment services that are needed by its disabled employees. At the same time, it should act as a means of integration in the mainstream labour market for as many people with disabilities as possible.

The workforce in these centres should be made up of the greatest possible number of workers with disabilities the productive process allows, and in all cases workers with disabilities should constitute at least 70% of the workforce. When calculating this figure, staff members with disabilities whose job is providing personal and social adjustment services (meaning rehabilitation, therapeutic services, social and cultural integration and integration through sport to ensure the worker with disabilities enjoys an enhanced personal rehabilitation and improved adaptation to his or her social relations) are not included.

Special Employment Centres may be public or private entities and may or may not enjoy non-profit making status. Centres must be accredited by and included in the central government or regional government Register of Centres.

Any person with a physical, mental or sensorial disability may be employed in a Special Employment Centre, subject to approval by a multidisciplinary assessment team that will determine the person's real possibility to integrate and his or her ability to work.

A - Assistance and subsidies

The National Public Employment Service may grant assistance and subsidies to those special employment centres that are part of the register set up for this purpose. These include:

a - Part funding for projects aimed at generating employment for unemployed workers with disabilities, preferably steady jobs.

b - Assistance to retain jobs for workers with disabilities in special employment centres.

The financial assistance that may be made available for projects of this type is as follows:

- 12 020.24 euro per steady job created if workers with disabilities make up more than 90% of the total workforce at the special employment centre;

- 9 015.18 euro per steady job created if workers with disabilities make up between 70% and 90% of the total workforce at the special employment centre.

The assistance aimed at retaining positions in special employment centres consists of:

a) 100% reduction in the employee's social security contributions, including professional contingencies and joint payment quotas. The reduction is made directly by the centre itself, once it has received authorisation to do so, from the monthly taxable amount.

b) Subsidy of the salary costs associated with the full-time job held by the worker with disabilities who is registered with the social security services. This subsidy amounts to 50% of the minimum wage and is reduced proportionally in the case of part-time employment.

c) Subsidy to adapt workplaces and remove architectural barriers. This subsidy shall be up to a maximum of 1 803.04 euro and shall not be greater than the actual cost of the adaptation.

d) Single payment subsidy to provide bail-out financial assistance to special employment centres in order to carry out restructuring.

e) Subsidy aimed at balancing the budget in special centres that do not enjoy non-profit making status but are public utility and indispensable facilities. This subsidy may not be used to make up for adverse financial results arising due to mismanagement.

f) Technical assistance

B - Distinctive labour relations in Special Employment Centres

The labour relations between special centres and their employees with disabilities are considered to be distinctive.

The contract between the employer and the employee must be entered into in writing, on an official template and in quadruple.Contracts may be for any of the types provided for in standard legislation.

The work performed must be of a productive nature, remunerated and suitable for the particular circumstances of the employee in order to facilitate his or her personal and social integration and, if applicable, his or her subsequent integration in the regular labour market.

Many decisions that may be taken by the employer regarding the employment arrangements for employees (modifications to the working conditions, change of workplace and functions, promotion, etc.) must be checked and reported upon by a multidisciplinary team.

Multidisciplinary teams must assess the worker with disabilities at least once every two years in order to ensure the job is suitable for the employee's personal and professional circumstances. If, as a result of this assessment, the job is considered to constitute a serious health risk for the employee, he or she must be transferred to another position. If this is not possible, the contract must be terminated under the conditions established for termination of contract for objective reasons.

If this risk is observed prior to the periodical assessment the team shall be advised in order for it to act in accordance with the circumstances.

Contracts may be permanent or for a set period, in accordance with standard rules and regulations.

C - Salaries

The provisions established for a normal labour relation shall be applied with respect to salaries and guarantees, with the following particular conditions:

a) Should incentives be offered, these must not, in the opinion of the multidisciplinary team, constitute a risk for the physical or moral integrity of the employee;

b) The employee is entitled to two extraordinary payments amounting to at least thirty days' salary per payment.

c) Low productivity contracts involving a salary reduction of a maximum of 25% may be entered into due to the personal circumstances of the employee with disabilities. These circumstances must be verified by the multidisciplinary team.

Although the reduced salary may be lower than the minimum required for tax and social security contributions, such contributions may not be lower than the minimum.

D - Working hours

Standard legislation is applicable with respect to working hours, holiday entitlement and leave, with the following particular conditions:

- Overtime is not permitted except in order to prevent or repair breakdowns;

- The employee is entitled to a maximum of ten days' paid time off per six months in order to receive rehabilitation treatment and take part in career guidance and vocational training activities.

9 - Co-operation between Special Employment Centres and ordinary companies.

To promote the employment of people with disabilities who, due to the degree of their disability or type of disability, have particular difficulties to gain access to the ordinary labour market, there is the possibility of a special employment centre and an ordinary company entering into a partnership to set up a work enclave. This takes the shape of a subcontract for jobs or services that assists the worker with disabilities in the transition from sheltered employment in the special employment centre to mainstream employment.

To this effect, a work enclave is taken to be a contract between a company operating in the standard labour market, called the collaborating company, and a special employment centre for the performance of jobs or services that are directly related with the normal business activity of the former. To carry out these duties, a group of workers with disabilities from the special centre transfers temporarily to the collaborating company's premises.

Managing and organising the work in the enclave is the responsibility of the special employment centre, with which the worker with disabilities has a special labour relation, and the standard rules and regulations concerning subcontracting are applicable.

A- The aims of work enclaves are:

- To facilitate the transition of workers with disabilities from the special employment centre to employment in a company operating in the mainstream labour market;

- To enable workers with disabilities from a special employment centre to perform their job in a mainstream company setting in order to widen their experience;

- To ensure the mainstream company in which the work enclave is set up becomes more aware of the workers with disabilities' true capabilities and aptitudes as a stage towards the eventual hiring of these employees by the company;

- To allow the special employment centre to grow and develop its activities;

- To make it easier for companies to meet the 2% reserved jobs legal obligation temporarily and as an alternative method.

The collaborating company and, as a subsidiary duty, the special employment centre, must submit the contract between the two parties and any extensions to it to the National Public Employment Service or alternative competent body within one month of signing it.

B - Requirements

In order to be set up, a work enclave must have at least 5 workers if the workforce in the collaborating company has 50 or more employees, or at least three if the workforce in the collaborating company is smaller than fifty. Those responsible for supervising the enclave employees are not included in the overall calculation of the total number, unless they themselves have a disability.

The special employment centre and the collaborating company are responsible for their duties as regards employment and social security in the terms laid down in rules and regulations concerning subcontracting, while the special employment centre is in charge of disciplinary matters related to the enclave employees.

The enclave is made up of workers with disabilities from and chosen by the special employment centre in accordance with the following criteria:

1 At least 60% of the enclave workers must have particular difficulties in accessing the ordinary labour market. These difficulties are as follows:

- People with cerebral palsy, people with mental illness and people with intellectual disabilities, in all cases with a registered degree of disability of 33% or more;

- People with a physical or sensorial disability and a registered disability of 65% or more;

- Women with disabilities who are not covered by either of the previous conditions and with a registered degree of disability of 33% or more. This group may constitute up to 50% of the aforesaid 60%.

The remaining enclave employees must be workers with disabilities and a registered degree of disability of 33% or more.

2 At least 75% of the enclave workers must have been employed at the special employment centre for at least three months.

Once the enclave is set up, the special employment centre may only replace the workers employed therein for a justifiable reason and must, in this case, comply with the conditions laid down with respect to selecting personnel.

When the contract between the collaborating company and the special employment centre comes to an end, the workers with disabilities who were employed in the work enclave continue to maintain their labour relation with the special employment centre, with the exception of those who were hired to work in the enclave on a contract for a specific job or service.

C - Measures to facilitate the move from sheltered employment to employment in the mainstream market.

Should the collaborating company enter into a contract with a worker previously employed in the work enclave, the following conditions apply:

1 The contract should preferably be a permanent one, although other types of contract are allowed if suitable.

2 There shall be no probationary period unless the employee will be performing functions that are completely different from those that he or she carried out in the enclave.

3 On joining the collaborating company, the employee is understood to be on voluntary secondment from the special employment centre.

D - Incentives to hiring workers with special difficulties.

If collaborating companies hire a worker with disabilities and special difficulties to gain access to the mainstream labour market from the work enclave on a permanent contract, and they do so with immediate effect and after the enclave has been operating for three months or, if he or she joined the enclave at a later date, the employee has been working in the enclave for three months, they are entitled to the following assistance:

- Subsidy amounting to 7 814 euro for each full-time employment contract entered into. If the contract is part-time the subsidy will be reduced proportionally and the collaborating company may use all or part of the assistance to provide support services to the employee.

- 100% reduction in the company social security contributions for the entire duration of the contract, including work-related accident and illness quotas and joint payment contributions;

- Subsidy to make necessary adjustments to the workplace and remove barriers and obstacles;

If collaborating companies hire a worker with disabilities but without special difficulties to gain access to the mainstream labour market from the work enclave on a permanent contract, they are entitled to assistance.