Legal Considerations regarding the Employment of Employees with Severe Disabilities

Severe Disability and Equivalent Status

Persons with a degree of disability of at least 50 are considered to have a severe disability. Persons with a degree of disability of at least 30 but less than 50 may, under certain conditions, be granted a status equivalent to that of persons with severe disabilities. The disability and the degree of disability are determined by the competent authority upon application by the person with a disability. The Ninth Book of the Social Code (SGB IX) contains numerous protective provisions for persons with severe disabilities, most of which also apply to persons with equivalent status. The following explanations apply to both severely disabled persons and those with equivalent status, unless expressly stated otherwise.

General Employment Obligation

Employers with an annual average of at least 20 jobs are legally required to employ severely disabled persons. The mandatory employment quota is 5 percent of the total number of jobs. If the employment obligation is not met, a graduated compensation levy must be paid.

Rights of Severely Disabled Employees

Severely disabled employees – but not those deemed equivalent – are entitled to five additional days of paid annual leave based on a five-day workweek.

Upon request, severely disabled employees must be exempted from overtime. If the disability so requires, there is a legal right to part-time work, provided that this is not demonstrably unreasonable for the employer.

The protection against termination for severely disabled employees is particularly significant. After the employment relationship has existed for six months, any termination – including extraordinary termination and termination with the offer of alternative employment – requires the prior consent of the Integration Office.

Special protection against termination also applies if the employer is not aware of the severe disability but it is obvious. Furthermore, special protection against termination applies if, after receiving the notice of termination, the employee informs the employer of

•  a confirmed severe disability or
• an application for recognition of a severe disability that was filed no later than three weeks before receiving the notice of termination (and was subsequently approved).
  

As a rule, the employee must provide this information within three weeks of receiving the notice of termination.

This is particularly relevant in practice because the employee is not obligated to disclose a disability, and the employer may ask about it during a job interview only if the disability would prevent the employee from performing the job in question. If the employer asks without being entitled to do so, the applicant is entitled to give a false answer without having to worry about legal consequences.

In the case of terminations for operational reasons, severe disability is a factor that must be taken into account when selecting among comparable employees as part of the social selection process.

Obligations Toward Severely Disabled Employees

The employer is required to make the workplace accessible for people with disabilities. This includes, among other things, suitable workplace equipment, technical aids for the specific workstation, and adapted work organization and working hours, with special consideration given to potential accident hazards.

Furthermore, based on European case law, there is currently also a discussion as to whether an employer may be obligated to support employees who are not themselves severely disabled but who must care for a disabled child by making reasonable accommodations to the workplace or work schedules.

Discrimination on the basis of a severe disability is prohibited. A violation of this provision may entitle the employee to compensation for financial losses as well as for the violation of their personal rights.

Obligations toward Government Agencies and Employee Representatives

The employer must assess whether vacant positions can be filled by individuals with severe disabilities. If the assessment is positive, these positions must be reported to the Employment Agency. The Integration Office must be notified following the hiring of a severely disabled employee. In addition, a list of employed severely disabled employees must be maintained and made available to the authorities for inspection, and employment data must be reported regularly.

Every employer who employs at least one severely disabled employee is required to appoint an inclusion officer. If there are five or more severely disabled employees, a representative body for severely disabled employees must be elected. Failure to fulfill the aforementioned obligations may result in legal disadvantages for the employer.

The inclusion officer and, in particular, the representative body for severely disabled employees have extensive rights to information and participation – from the hiring process through the termination of the employment relationship. If, for example, difficulties arise in the employment relationship, the employer is obligated to consult with the works council, the representative body for severely disabled employees, and the Integration Office to discuss all available solutions and support services aimed at continuing the employment relationship where possible. In addition, the representative body for employees with severe disabilities must be involved – alongside the works council – prior to any termination of an employment contract involving an employee with severe disabilities, even within the first six months of the employment relationship.

Opportunities to Support Inclusion

The Integration Offices, the Employment Agency, and the accident or pension insurance providers promote and ensure the employment of severely disabled employees and support employers and employees through various financial subsidies (e.g., for the vocational training of severely disabled individuals) and personal advice.

Please feel free to contact us if you need assistance with the legally compliant employment of severely disabled employees, for individual employment law matters, or if you have questions about available funding opportunities.