In order to promote the integration of disabled workers into the workforce, companies are required to meet certain obligations regarding the employment of disabled workers. Disabled workers are defined as people whose possibilities of obtaining or keeping a job are effectively reduced as a result of the alteration of one or more physical, sensory, mental or psychological functions (article L. 5213-1 of the French Labor Code).
This status is recognized by the Commission for the Rights and Autonomy of Disabled Persons (for more information on the CDAPH)
After reminding you of some of the major obligations with regard to disabled workers, we will tell you what the main measures resulting from the “Professional Future” law of September 5, 2018, the “Pacte” law of May 22, 2019, practical for the most part as of January 1, 2020, as well as Decree no. 2020-1350 of November 5, 2020, relating to the employment obligation for disabled workers, are.
1/ Some major obligations in terms of employment of disabled workers
1-1. The obligation to employ disabled workers
A – The principle : 6% of disabled workers
Companies with at least 20 full-time or part-time employees are required to employ at least 6% of disabled workers.
The obligation to employ disabled workers concerns all persons mentioned in article L. 5212-13 of the French Labor Code. These include workers recognized as disabled by the Commission for the Rights and Independence of Disabled Persons and those holding a disability card.
Companies must declare the number of disabled workers employed before March 1st of each year. This declaration is called “mandatory declaration of employment of disabled workers” and is currently made to Agefiph.
B – Some mitigations
Employers are fully compliant with their obligation if they apply an approved agreement implementing an annual or multi-year program for disabled employees (see circulaire DGEFP n° 2009-16, May 27, 2009)
Employers can also partially fulfill their obligation, in particular by :
- Hosting disabled trainees up to a limit of 2% of the company’s workforce and 35 hours per week per employee (article L. 5212-7 of the French Labor code) ;
- The payment of an annual contribution to Agefiph, calculated on the basis of the number of employees that the employer should have hired and the number of employees present in the company ;
- The signing of subcontracting, supply or service provision contracts with adapted companies (see link on the agefiph website or the article L. 5212-6 and R. 5212-5 of the French Labor code ;
- Contracts entered into with employee portage companies also entitle to deductions if the service provider is a disabled worker (Art. 1er, décret n° 2020-1350, November 5, 2017) ;
- The implementation of expenses related to the realization of diagnosis and work to make the premises of the company accessible to disabled workers ;
- The implementation of expenses made for the maintenance of employment within the company and for professional retraining through the implementation of compensatory human, technical or organizational means.
1-2. The obligation to adapt the job
A – The principle
In order to guarantee the effectiveness of the principle of equal treatment, the employer must take appropriate measures (article L. 5213-6 du code du travail) so that a disabled worker can :
- Access the job and perform his or her duties ;
- Keep a job that corresponds to his or her qualifications and progress in that job ;
- Access training adapted to their needs.
Refusal to comply with the obligation to adapt the job could constitute discrimination within the meaning of the article L. 1133-3 of the French Labor Code.
Workstation accommodation :
The workstation must be adapted to the level and nature of the employee’s disability. These adjustments are subject to consultation with the occupational physician. For example, the employer must adapt access to the workplace.
Adjustment of the disabled employee’s work schedule :
The adjustment of individualized schedules is possible to facilitate access to employment, exercise or maintenance of employment (article L. 3121-49 of the French Labor Code).
In addition, family members and caregivers can also benefit from an adjustment of their working hours in order to facilitate the support of the disabled employee.
Monitoring the health status of the disabled worker :
Since January 1, 2017, employers have been required to guarantee individual monitoring for disabled employees. This obligation has replaced the obligation of reinforced monitoring.
Support for the disabled in the company
The company is obliged to appoint a disability advisor when it employs disabled workers. In addition, access to teleworking must be facilitated. The same applies to access to employment through temporary work.
These measures encourage disabled employees to remain in employment.
B – Implementation of the adaptation
On the one hand, the employer can obtain employment assistance from Agefiph.
In particular, it can :
- Obtain financial compensation based on the severity of the disability (article L. 5213-11 of the French Labor Code) ;
- Assistance for professional integration ;
- Aid for professionalization contracts ;
- Aid for apprenticeship contracts.
On the other hand, the employer can obtain employment aid granted by the State (article L. 5213-10 and R. 5213- 32 of the French Labor Code). For instance, the employer can obtain aid for the adaptation of workstations.
However, if the employer justifies that the expenses generated by these measures would be disproportionate, despite this aid, it may be exempted from the implementation of the obligation to adapt the job.
2/ The new features of the law “Avenir professionnel“ of September 5, 2018 and the “Pacte” law of May 22, 2019
From January 1, 2020, some rules concerning the employment obligation for disabled workers change :
- The declaration of the number of beneficiaries of the employment obligation for disabled workers will be integrated into the nominative social declaration (DSN) and no longer to Agefiph, even if the company has a workforce of less than 20 employees. EIn principle, the declaration for the year N-1 is made via the DSN for the employment period in February. However, exceptionally, for the first year of implementation, the declaration for the year 2020 will be made via the DSN for the employment period of May 2021 (Art. 3, décret n° 2020-1350, November 5, 2020) ;
- The obligation to employ 6% of disabled workers will be assessed at the level of the company and no longer at the level of each establishment of the company ;
- The annual contribution for non-compliance with the obligation to employ disabled workers will be collected by URSSAF and then transferred to Agefiph ;
- The minimum rate of disabled workers, currently set at 6%, will be reviewed every five years. The minimum rate of disabled workers, currently set at 6%, will be reviewed every five years and may be modified as of January 1, 2025 ;
- It will no longer be possible for employers to partially fulfill their obligation to employ disabled workers through contracts with adapted companies. However, the expenses related to these contracts will become deductible from the annual contribution! In addition to this deduction, expenses related to the integration of the disabled employee will be deducted. The expenses that can be deducted from the annual contribution will have to be taken into account for their price excluding taxes (Art. 1, décret n° 2020-1350, November 5 2020) ;
- On the other hand, trainees, workers on work experience placements and employees made available will be fully, and no longer only partially, counted ;
- Approved agreements can no longer be concluded at the level of the establishment, but at the level of the company, the group or the branch ;
- Companies that reach this threshold and newly created companies will have a period of 5 years to comply with the obligation to employ disabled workers, instead of 3 years ( Pacte law of May, 2019).
3/ Clarifications resulting from Decree no. 2020-1350 of November 5, 2020
The article D. 5212-25 of the French Labor Code lists jobs considered as « requiring particular conditions of aptitude » (ECAP). For these positions, the recruitment of people with disabilities is more complicated, if not impossible.
Companies that have to use this type of employment benefit from a reduction in the contribution. The amount of the deduction is equal to the product of the number of employees in the company employing an ECAP multiplied by 17 times the gross hourly minimum growth wage (Art. 1, décret n° 2020-1350, November 5, 2020).
In addition, until December 31, 2024, in addition to the deductions provided for by law, and up to a limit of 10% of the amount of the annual contribution, expenses incurred for (Art. 3, décret n° 2020-1350, November 5, 2020) :
- participation in events promoting the reception, direct hiring and retention of disabled workers in the company ;
- partnerships, by way of agreement or membership, with associations or organizations working for the training, social and professional integration of disabled persons whom the employer welcomes or hires, excluding participation in sponsorship operations ;
- actions contributing to the professionalization of managers or workers of adapted companies, workers of establishments or services providing assistance through work or self-employed disabled people, as well as the development of purchases from these actors.
The provisions of this decree apply to declarations relating to the obligation to employ disabled workers due as of January 1, 2021 (Art. 1er, décret n°2020-1350 November 5, 2020).
3/ Details from decree n° 2021-918 of July 9, 2021
As of the 2020 employment obligation, the number of employees subject to the obligation is determined in accordance with the terms and conditions set forth in the Social Security Code, and no longer according to the rules set forth in the Labor Code (Articles L.5212-1 of the French Labor Code, L.130-1 andR.130-1 of the Social Security Code).
The decree of July 9, 2021 vprovides further details on the number of employees subject to the obligation to employ disabled workers (OETH) :
- Reference year : awhereas in social security matters, the average annual headcount for a year N corresponds in principle to the average monthly headcount for year N – 1, the headcount subject to the OETH is the headcount « of the year preceding that in which the declaration relating to the obligation to employ disabled workers is made the contribution is declared », i.e. the year of the OETH in question (the French Labor Code. art. D. 5212-1 modified). CIn practical terms, there is no real change; this decree merely brings the Social Security Code into line with the administrative position.
- Information for employers : starting with the 2020 employment obligation, URSSAF will inform companies each year of the relevant workforce (in particular the number of employees subject to the obligation and the number of OETH beneficiaries to be employed) with regard to the OETH. Employers will therefore not have to make the calculations, except for verification purposes.
- LThe decree also specifies that when the employer employs employees who are partly under the jurisdiction of the general scheme (URSSAF and CGSS) and partly under the jurisdiction of the agricultural scheme (CMSA), the body that sends the employer the information is the one to which the majority of its employees are subject (French Labor Code. D. 5212-5 modified).
