New laws seek to improve employment prospects of workers with disabilities

In November 2001, the German government completed a series of legal reforms which seek to fight discrimination against people with disabilities in all aspects of life. At the centre of the reform package is a set of measures which will promote and improve the employment of workers with disabilities, and reduce barriers at workplace and in terms of interaction with public authorities. After more than a decade of increasing unemployment among disabled workers, these new laws have already contributed to reversing this trend.

On 7 November 2001, the German government approved a draft Law on Equal Opportunities for People with Disabilities (Gleichstellungsgesetz für behinderte Menschen), which is due to come into force on 1 May 2002. This law completes a series of reforms and political initiatives by the 'red-green' coalition government, intended to fight discrimination against people with disabilities (TN0102201S). A general anti-discrimination clause was incorporated into the German constitution in 1994, and three more recent laws now seek to give people with disabilities more rights in several areas, but focusing on the employment relationship in particular.

It is estimated that in 2001 there are between 6.6 million and 10 million people with disabilities in Germany, and until recently their labour market prospects had deteriorated for at least 10 consecutive years. In 1999, the year when unemployment among this group reached its peak, about 190,000 disabled workers were without a job. However, after the government set up a new programme entitled '50,000 new jobs for disabled workers', which is supported by trade unions, employers and several associations of people with disabilities, the negative trend was reversed. Thus, between October 1999 and September 2001 unemployment among disabled workers was reduced by 23,744 to 166,022.

According to Walter Riester, the Minister of Labour and Social Affairs, there are multiple reasons which account for this success. While the Federal Employment Service (Bundesanstalt für Arbeit) significantly increased its efforts to bring disabled workers back into employment, Mr Riester also believes that the government's national campaign contributed to raising awareness of the problems among employers. Most importantly, the positive development is assumed to be the result of several legal reforms which provide incentives to companies, and which are critical in motivating them to hire workers with disabilities.

Laws on promoting employment of disabled workers

In October 2000, parliament approved the Act to Fight Unemployment of Persons with Disabilities (Gesetz zur Bekämpfung der Arbeitslosigkeit Schwerbehinderter, SchwbAG), which in April 2001 was revised and incorporated into the Social Security Code. Book IX of the Social Security Code now includes a comprehensive set of regulations on disability, and in particular includes measures aimed at helping physically and psychologically disabled employees to be integrated into the work process. At the heart of the new law are the following issues:

• revising employment quotas for disabled employees;
• establishing a dense network of integration agencies;
• covering the costs for assistance to support disabled employees in the conduct of their work duties (Arbeitsassistenz);
• providing funding for special projects to integrate employees with disabilities into the work process; and
• improving the rights of company-level representative bodies for disabled employees

New employment quota for disabled workers

The new law has reduced the minimum quota for the employment of employees with disabilities from 6% to 5%. Employers with a workforce of more than 20 which do not confirm to this quota are required to pay a penalty. While, prior to the reform, employers had to pay a monthly compensatory tax to the Central Agency for the Disabled (Integrationsamt) for every job covered by this obligatory quota not duly allocated to a disabled person, the new law introduced a different scheme. As indicated in the table below, the new law makes sanctions less severe in the event that an employer only partially fulfils employment requirements, while raising penalties substantially for those companies which completely refuse to comply.

Source: Ministry of Labour and Social Affairs.

The lowered threshold for the employment of disabled workers, however, has been made conditional on positive developments. Should the number of unemployed people with disabilities decrease by less than 50,000 by October 2002, the threshold will be raised to 6% again.

Integration agencies

In total, 172 integration agencies (Integrationsfachdienst) have been created to assist the Federal Employment Service and the Central Agency for the Disabled in doing their work. In particular these agencies help in job placement, securing a job, giving advice to disabled employees and advising employers on issues related to disability and employment. Among other points, the agencies' services include:

• developing job descriptions and performance standards;
• finding new jobs for disabled workers;
• preparing disabled workers for a new job;
• on-the-job training; and
• giving advice to co-workers at the workplace.

In 2001, the Federal Ministry of Labour made available DEM 80 million to finance these agencies, and funding will be extended in 2002. According to Minister Riester, the integration agencies have proved to be very successful and many employers value highly the advice and support they provide. Given that in 2001 the agencies were not even operating at full capacity, the Minister argues that it is remarkable that some 2,000 workers with severe disabilities have already been successfully placed in the job market.

Assistance on the job

While employers were already required to make preparations to organise work and the workplace in a way which suits the special needs of employees with disabilities, the new law also entitles such employees to special assistance on the job. If these employees need help to manage auxiliary tasks related to their work, they can hire a person to assist them. While the disabled workers act as the employer of such personal assistants, the costs are usually covered by the Central Agency for the Disabled. Under the new law, disabled workers are entitled to personal assistance funding worth between EUR 250 and EUR 1,000 per month. Higher costs can be covered in exceptional cases only.

Special projects

Companies, plants or even individual departments within a company are eligible to apply for special funding to improve employment, training and special services for employees with disabilities. To be accepted as a 'special integration project', the proportion of disabled workers within a company or unit must be more than 25% but less than 50%. Funding is made available for workplace modernisation and extension, for creating special workplaces for disabled workers, and for advice in the field of business administration.

New participation rights

The new law improves the rights of the company-level representative bodies for disabled employees. Representatives are now entitled to: participate in the meetings of the workplace health and safety committee; have a say in hiring new employees; and support disabled workers in the pursuit of equal treatment. In companies with more than 200 disabled employees, the representative for disabled employees is to be freed form his or her work duties. Most importantly, the representative body is now entitled to negotiate 'integration agreements' (Integrationsvereinbarungen). Such agreements are intended to improve the employment prospects and quality of work of employees with disabilities. The partners to an integration agreement are:

• representative bodies for disabled employees;
• employers;
• works councils or staff councils;
• the Federal Employment Service; and
• the Central Agency for the Disabled (whose participation is not mandatory).

Agreements can cover various issues of concern for disabled employees and in particular work organisation, working time, human resource planning, the work environment, and workplace design.

A workplace without barriers

When the red-green coalition government approved the Law on Equal Opportunities for People with Disabilities in November 2001, another important step was taken in the fight against discrimination. While the law seeks to benefit disabled people in general and thus does not exclusively focus on the workplace, it will also have important implications for the working conditions of employees with disabilities. At the centre of the law is a 'general duty clause' which acknowledges the right of people with disabilities to equal participation in social life. To remove such restrictions on participation, the law outlines a comprehensive concept of a 'barrier-free environment'- which includes physical barriers as well as those barriers which limit the ability of visually impaired people to communicate and barriers to participation in elections. It is the law's goal to enable people with disabilities to access all areas of social life on their own. Especially, this applies to:

• buildings;
• means of transportation;
• technical equipment; and
• communication equipment.

To reach this goal, the federal government seeks to amend a variety of laws relating to railways, air transport, local public transportation, universities and restaurants. While these changes mainly affect the state and its agencies, there is another set of regulations which will enable employers, unions and representatives of people with disabilities to negotiate voluntary agreements.

Voluntary target agreements

To remove barriers in the private sector, the law empowers associations of people with disabilities to approach companies and to negotiate 'voluntary target agreements' (Zielvereinbarungen) on the removal of barriers to disabled people. Such target agreements are intended to create more flexible and appropriate solutions which suit the special needs of both people with disabilities and companies. The state has little involvement and these new agreements will place the initiative into the hands of associations of people with disabilities. Thus, the government argues, disabled people will be freed from their role as passive recipients of state services. Potential examples of such target agreements include negotiations on barrier-free shops in the retail sector and translations into sign language in private broadcasting. The German Federation of Trade Unions (Deutscher Gewerkschaftsbund, DGB) hopes that such agreements will complement and support existing agreements negotiated by company-level representative bodies for disabled employees.

Provisions on gender mainstreaming

According to estimates by the Ministry of Labour, there are 3 million women with severe disabilities. The law acknowledges that these women are subject to a dual discrimination, one because of their gender and another based on their disability. The reform of the Social Security Code has improved the opportunities for women to tailor special rehabilitation measures to their personal needs. Thus, such measures must be offered in close proximity to the homes of the women concerned and it should also be possible to participate in these measures on a part-time basis. The new Law on Equal Opportunities for People with Disabilities adds to this by empowering the state, employers and private associations for disabled people to conclude special agreements and to implement measures which exclusively benefit women.

Social partner involvement

From the very beginning , the government sought to involve a full range of organisations and associations in the formulation of its disability reform bills. Prior to the drafting of the Act to Fight Unemployment of Persons with Disabilities, employers' associations, associations of crafts employers, trade unions and several associations of disabled people were invited to share their expertise in this field and to help develop a joint proposal. While all participants shared an awareness of the problems and agreed on the general aims of the legal reform, there was some disagreement in particular between unions and employers' associations.

In a statement on the reform of the Social Security Code, which finally implemented the provisions of the Act to Fight Unemployment of Persons with Disabilities, the Confederation of German Employers' Associations (Bundesvereinigung der Deutschen Arbeitgeberverbände, BDA) complained that the government did not follow up employers' demands for a deregulation of the current special protection against dismissal for disabled employees. According to BDA, such special protection harms the employment prospects of workers with disabilities, in that it makes it more beneficial to employ non-disabled workers. From this perspective, companies are more prone to hire non-disabled workers because it is easier to dismiss them if necessary.

By contrast, major trade unions have more openly welcomed the reforms and do not share employers' criticism of provisions which protect disabled workers from dismissal. Among other aspects, unions support the enhanced rights of representative bodies for disabled employees and the new opportunities to negotiate agreements between companies and organisations of disabled people. According to Ursula Engelen-Kefer, the DGB vice president, the Law on Equal Opportunities for People with Disabilities will in particular open up companies in the service sector to the needs of disabled people. Ms Engelen-Kefer also acknowledges that the new law will put more emphasis on voluntary agreements, instead of exclusively relying on the state.

Commentary

It is truly encouraging that, even after a relatively short time, a legal reform has already had the intended positive effects. First of all, the winners are thousands of disabled workers who have been provided with access to the labour market and thus with a full range of new opportunities, who are now able to participate in social life. Second, with the support of the new regulations, employers will gain access to a new pool of workers which will improve their chances of finding the specific skills they need. (Martin Behrens, Institute for Economic and Social Research, WSI)