How can employers meet the obligation to integrate employees with disabilities? – Commentary

Jennifer E. Engen

Introduction
Background
Labour courts’ approach
Comment

Introduction

According to the law, all employers are obliged to enable people with disabilities to integrate into the workplace.

The obligation to adjust is a direct obligation imposed on employers by law. In accordance with labour court rulings, employers should make reasonable adjustments before they examine a disabled person’s ability to perform the essential requirements of a job.

Where an employee has become disabled or had their disability aggravated while under contract, in addition to the employer’s obligation to make reasonable adjustments under the Equality Act (especially as regards long-term employees), the employer must try to enable the employee to continue their work under the obligation of good faith, which is an essential part of the employment relationship.(1)

Background

Equal Law
The Equal Rights for Persons with Disabilities Law 5758-1998 (the Equal Law) prohibits discrimination against persons with disabilities as regards:

  • admission to work;
  • working conditions;
  • promotion;
  • training (vocational or otherwise);
  • dismissal or severance pay; and
  • retirement benefits and payments.

Failure to make adjustments that allow disabled employees to carry out their duties may also constitute employment discrimination.

Extension order to encourage and increase employment of disabled people
In October 2014, an extension order was issued and entered into force. It dealt with encouraging and increasing the employment of disabled people and applied to all employers with 100 employees or more.

In accordance with the extension order, an employer whose staff comprises at least 3% of disabled persons will be considered to have adequate representation. The order’s definition of “disability” is:

a person with a physical, mental or intellectual disability including cognitive, permanent or temporary, whose maturity is substantially limited in functioning in one or more of the major areas of life.

A monitoring committee has determined that a “person with a disability”, for the purpose of complying with the provisions of the extension order, is a person with a disability within the meaning of the Equal Law, which encompasses people:

  • with a disability of 40% or more (ie, benchmark disability) that is recognised by the National Insurance Institute, the Ministry of Defence, the Income Tax Authority or the Ministry of Health;
  • who have undergone vocational rehabilitation for a work placement by the National Insurance Institute, the Ministry of Welfare or the Ministry of Health; or
  • who were formerly recruits of the Israel Defence Forces and who have undergone vocational rehabilitation for a work placement by the Ministry of Defence.

In order to ensure that the appropriate representation quota is implemented, it is mandatory to appoint a person on behalf of the employer to be responsible for employing disabled persons.

Labour courts’ approach

The view of the labour courts is that the proper integration of disabled people in the workplace contributes to:

  • their integration into society;
  • the improvement of their skills and abilities; and
  • their economic independence and exercise of the right to dignity and equality.

In accordance with a ruling of the National Labour Court, the Equal Opportunities for Persons with Disabilities Act imposes a positive and active obligation to create conditions that will enable the employment of people with disabilities, as well as their promotion in the workplace. It was determined that actions deemed to be reasonably necessary for their integration should also be taken for a person with a disability who wishes to work in the same position or advance to it.(2)

Under this obligation, employers are required to re-examine the structures, procedures, norms and accepted practices of the workplace, and find creative ways to correct or change them in order to enable the full and equal integration of disabled employees in the workplace.

According to the Court’s ruling, possible adjustments could include:

  • flexible working hours, either by splitting them or allowing part-time work;
  • job re-allocation;
  • creation of a new job that is suitable for a disabled employee;
  • ad hoc deviation from regular work practices; and
  • economic adjustment by “absorbing the cost of employing a person with a disability and paying their wages on a relatively high basis, compared to their output, given their disability”.

The obligation to make adjustments is not absolute but is subject to the “too heavy burden” exception, which is defined as:

an unreasonable burden in the circumstances, given, inter alia, the cost and nature of the adjustment, the size and structure of the business, the scope of activity, number of employees, manpower and existence external or state funding sources for the adjustment.

Comment

According to the law, employers must implement structures in the workplace that will help people with disabilities to integrate optimally and equally.

Such an obligation is not a gracious act or an act performed “before the rule of law”, but a direct obligation imposed on employers by law.

For further information on this topic please contact Hilit Cohen-Resnizky at Efrat Deutsch & Co by telephone (+972-3-6096960​) or email ([email protected]). The Efrat Deutsch & Co website can be accessed at www.edz-law.co.il.

Endnotes

(1) LA12264-10-13 Joseph Cohen – Tel Aviv-Jaffa Municipality, 21 August 2017.

(2) LA 61235-02-17 Kopolak (1949) ltd – Michael Chananshvili, 16 October 2018.

https://www.lexology.com/commentary/employment-immigration/israel/efrat-deutsch-co/how-can-employers-meet-the-obligation-to-integrate-employees-with-disabilities

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