Employers have the right to choose whether to notify the Employment Agency on the vacant positions for persons with permanent disabilities

June 2019

The new Persons with Disabilities Act (“PDA”) effective as of January 2019 significantly amended the obligations of employer regarding the employment of persons with disabilities. You can refer to our summary of the key changes here to retrieve your memories on the issue. The obligations of the employers were recently supplemented by the new Implementing rules to the PDA which provides answers to some frequently asked questions:

  • Does the obligation to employ persons with permanent disabilities apply to all employers?

No. The obligation applies only to employers which have at least 50 employees. If the headcount is below this number, the employer does not have a quota to cover by employing a certain number of employees with permanent disabilities. Yet, the employer may voluntarily decide to employ such persons.

  • Can an employer with 50 or more employees be exempted from the obligation to employ persons with permanent disabilities?

Yes, if the employer proves that one of the following two hypothesis is present:

  • the working environment at the employer does not allow for the employment of persons with permanent disabilities;
  • there are no persons with permanent disabilities who may be employed by the employer.
  • How does the employer prove that there are specific factors at the employer’s working environment that exempt the employer from the obligation to employ persons with permanent disabilities?

Each employer that wishes to apply this exemption set in the PDA has to execute jointly with its labor medicine office a written justification on the existence of specific factors at the employer’s working environment. The justification has to explain why the respective factors in the working environment impede the employment of persons with permanent disabilities. The preparation of the justification should not be a formal act since the PDA provides the General Labor Inspectorate with the prerogative to review the justification if an inquiry is made and evaluate whether the factors listed in the justification are indeed present at the employer’s working environment.

  • How does an employer prove that there are no candidates with permanent disabilities who are fit to work for the employer?

Employers may use all available recruitment channels to find candidates for the vacant positions that are appropriate for persons with permanent disabilities. In particular, the employer may use the services of registered companies that provide intermediary services for recruitment of personnel as well as the cooperation of the Employment Agency.

In the event of an inquiry by the General Labor Inspectorate, the employer has to provide certificates on the use of the services of a labor intermediary. The certificate has to contain information on the number of vacant positions notified by the employer, the number of employed persons and the remaining vacant positions, as well as the motives why some of the positions have remained unoccupied. The Labor Inspection will collect directly from the Employment Agency the information whether or not its intermediary services were used by the employer.

  • Is there an obligation for employers to send notifications to the Employment Agency on the available vacant positions that could be occupied by persons with permanent disabilities?

No. The employer may on its own discretion ask the Employment Agency (its respective regional structure) for its assistance in the recruitment of candidates that are fit for the position. The request for assistance is made in a template form in writing on an annual basis by 31 March of the latest. As an exception, this year the request has to be send by 2 July 2019.

Yet, the intermediary services of the Employment Agency are one of the possible recruitment channels for the identification of appropriate candidates. Therefore, employers that wish to rely on the exemption that there are no candidates with permanent disabilities, will have to cooperate with the Employment Agency as well.

  • If an employer may not exempt itself from the obligation to employ persons with permanent disabilities, what are the alternative measures that it may apply?

The employer may as an alternative measure establish commercial relations directly with persons with disabilities, with specialized enterprises of persons with disabilities or with social enterprises which employ persons with disabilities as a certain percentage of their headcount.

A mandatory requirement is that the employer buys goods or uses services of such enterprises for a minimum amount of at least double of the minimum monthly wage in Bulgaria. This minimum amount is applied for each vacant position at the employer that has to be occupied by a person with permanent disabilities.

  • If an employer applies an alternative measure, is it then exempted from its obligation to employ persons with permanent disabilities?

Yes. As far as the employer buys goods and uses services covering the established minimum amount, the employer is not required to additionally employ persons with disabilities under employment contracts.

  • Is an employer that pays compensation exempted from its obligation to employ persons with disabilities?

No. The compensation is due by employers that simultaneously are not exempted from the obligation to employ persons with permanent disabilities and do not apply an alternative measure. The compensation is fixed at 30 percent of the minimum monthly salary in Bulgaria and is paid as a monthly sanction for the employer for its failure to comply with the obligations set by the PDA.

For more information, please refer to:

Ilya Komarevski, Attorney-at-law, Partner
Ilya.Komarevski@tbk.bg

Mileslava Bogdanova-Misheva Attorney-at-law, Senior associate
Mileslava.Bogdanova@tbk.bg

Legal Disclaimer: The material contained in this newsletter is provided for general information purposes only and does not contain a comprehensive analysis of each item described. Before taking (or not taking) any action readers should seek professional advice specific to their situation. No liability is accepted for acts or omissions taken in reliance upon the contents of this alert.

©TBK, 2019

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