New Law Requiring Affirmative
Action For Disabled People
Uberto Percivalle (Milan)
Tel: (39-02) 76231-1
In February of 1999, Italy enacted a new law reforming the mandatory placement of disabled people in the workplace. The new law is more employer-friendly than existing legislation, but it now applies to employers with as few as 15 employees. The new law was published in the Italian Official Gazette on March 23, 1999, thereby making the law enforceable as of January 17, 2000 (300 days after publication).
Disabled Persons
Under the new law, "disabled persons" include: (1)
individuals of a working age whose working capabilities are reduced by more than 45
percent as a consequence of physical or mental handicaps; (2) individuals whose working
capabilities are reduced by more than 33 percent as a result of working accidents; (3)
blind or deaf, and mute individuals; and (4) individuals disabled by war or service (and
in this respect, the law grants protections to many workers who have sustained serious
on-the-job injuries).
Employers To Whom The Law
Applies And Relevant Obligations
The primary requirement under the new law concerns the
mandatory employment of disabled persons based on the following schedule:
- At least 7 percent of employees for employers with more than 50 employees;
- At least two employees for employers with 36 to 50 employees; and,
- At least one employee for employers with 15 to 35 employees (although these employers are not obliged to hire a disabled person so long as they are not hiring new personnel).
All employers in Italy are subject to
the law with very few exceptions, which include: (a) certain positions in governmental
organizations; and (b) air, sea, and ground transportation providers with regard to
travelling personnel only. Previously, the law was applicable only to employers with more
than 35 employees (and such employers were required to hire at least 15 percent of
employees from certain "protected" categories, including disabled people). The
new law will lower the applicable threshold to employers with 15 employees.
Employers may be partially exempted from their obligations under the
new law when they cannot employ the mandatory number of disabled individuals due to the
peculiar conditions of their activity and provided certain "replacing
indemnities" are paid. Employers with more than one location may be authorized to
concentrate the employment of disabled individuals at certain workplaces (i.e.,
offsetting a lower number of disabled employees at one workplace with a higher number at a
different workplace). The reform measure also contemplates that these obligations will be
temporarily suspended for employers that have been admitted to "cassa integrazione"
(temporary layoff of employees to social security), have entered into "contratti
di solidarietà" (reduction of working hours to avoid redundancies), or during
collective dismissals procedures (and for a period of time after these procedures in the
case of at least five dismissals).
Placement Procedures
Under the laws currently in force in Italy, employers have
limited discretion to choose the disabled individuals they must hire and are bound instead
to hire employees who are referred by governmental placement agencies. The new law is more
favorable to employers, and allows some flexibility in selecting the disabled persons they
hire under the law. In this regard, the reform measure specifies that:
- Employers with 15 to 35 employees may choose all disabled individuals to be hired;
- Employers with 36 to 50 employees may choose 50 percent of the disabled individuals to be hired; and,
- Employers with more than 50 employees may choose 60 percent of the disabled individuals that they must hire under the law.
Furthermore, the new law provides that
in cases where labor authorities cannot place disabled individuals with the skills that
have been requested or agreed upon with employers, the mandatory placement will concern
individuals with similar skills and, if needed, only after appropriate training. This
provision may be construed and enforced so as to avoid the placement of disabled
individuals that do not meet the needs of employers.
Quite interestingly, the law also provides that employers and the local
labor authorities may enter into agreements concerning the implementation of the law, thus
allowing room for flexible enforcement of the specific requirements in each situation. One
of the express aims of the Italian Parliament in reforming the previous statutes was to
utilize these agreements to promote the employment of disabled individuals.
Reporting Obligations
Under statutes already in force, all employers are obliged to
file a report periodically with the relevant labor office specifying the number of
disabled people employed. The labor offices can order employers that 
do not meet the statutory quotas to hire one or more
specific unemployed people from the protected categories. Under the new law, employers are
still obliged to file periodical prospectuses concerning existing employees and disabled
employees, as well as to file a specific request for disabled employees (if mandatory
under the law). In the case of employment of individuals subject to certain major
handicaps, employers may benefit by partial or total reductions in social security
contributions. Moreover, contributions are also provided to reduce structural barriers in
the workplace and in order to introduce telework arrangements for disabled employees.
Termination Rights
One controversial aspect of the new measure is that
termination because of redundancy or other "objective" grounds ("giustificato
motivo") may be voided if, upon termination, the number of the remaining disabled
employees is lower than the mandatory quota under the law. The law also deals with
ordinary employees who lose work capabilities (i.e., employees who were not
disabled at the time of hiring). Under the law, when an employee suffers a reduction of
work capability by at least 60 percent, the employer may count such an employee for the
purpose of meeting the required quotas of disabled employees. Employees suffering a lower
reduction of work capability may not be terminated when it is possible to assign them to
equivalent duties, or even to lower duties, in order to preserve their jobs. In the past,
it was not clear whether such employees could be assigned to lower duties, and frequently
litigation occurred over this issue, as employers faced the paradox of either finding a
new position suitable to the employees who had lost the possibility to carry out their
former duties, or to terminate their employment. With regard to disabled employees who
come under the scope of the law, when a reduction of their working capability or a company
reorganization occurs – situations that are incompatible with their continuing
employment – then they are entitled to an unpaid leave of absence until such
incompatibility ceases.
Conclusion
While the new law will allow some flexibility in the hiring
of disabled persons, multinational corporations operating in Italy should familiarize
themselves with the statute’s requirements and penalties. In the case of a breach of
the duty to hire disabled individuals, employers are subject to punishment with a monetary
sanction equal to slightly more than 50 Euros per day for each position that should have
been allocated to a disabled employee.