Employers’ obligations to persons with disabilities

The Persons with Disabilities Act, enacted in 2003, came into operation in 2004 save for sections 22 (modification of public buildings), 23 (modification of public transport), 24 (adjustment of places where members of the public are ordinarily admitted), 35 (1) (registration of organisations for persons with disabilities), 35 (2) (exemptions from taxation), 39 (TV programmes) and 40 (telephone services) which came into operation on January 1 2010.

The objective of the Act is to provide for the rights and rehabilitation of persons with disability, to achieve equalisation for persons with disability, and to establish the National Council for Persons with Disabilities.

In essence, the purpose of the Act is to promote fair treatment of persons who live with challenges associated with disability.

The Constitution of Kenya has entrenched, in Article 54, the rights of persons with disabilities.

The overall spirit of the Act is that these people must not be discriminated against, and where necessary, affirmative action should be applied in their favour in order to minimise challenges they face and also to promote normal living.

Protection of persons with disabilities against discrimination is also contained in section 5 of the Employment Act, 2007.

One of the provisions for affirmative action is that at least five per cent of employment opportunities in the public and private sector should be reserved for people with disabilities.

Benefits under the Act include exemption of their employment income from tax, mandatory retirement age of 65 years; and waiver of duty, VAT, demurrage and port charges on all materials, articles, equipment, including motor vehicles modified for use by persons with disability.

The employer, on the other hand, is prohibited from denying them access to opportunities for employment or giving them inferior terms as a result of their disability.

The Act further prohibits employers from discriminating against persons with disabilities in job advertisements, recruitment, terms of employment, retrenchment or in any other matter related to employment.

Sections 12 and 15 are elaborate and employers are advised to familiarise themselves with the two sections.

On discrimination, Section 15 (1) of the Persons with Disabilities Act provides useful pointers.

It provides, in part, that positions created by an employer, and the wording of vacancy advertisements, must not appear to exclude persons with disabilities.

For instance, when a vacancy notice declares that the suitable job candidate must be physically sound, the job description must support this requirement which clearly makes it unsuitable to be performed by a person with disability.

Accusations of discrimination

If the job does not necessarily warrant a physically fit person to do it, wording a job advert in the manner described would expose an employer to accusations of discrimination against individuals with disabilities.

Other obligations of employers under the Act include modification of the workplace to be physically friendly to people facing challenges associated with disabilities.

Section 21 states: “Persons with disabilities are entitled to a barrier-free and disability-friendly environment to enable them to have access to buildings, roads and other social amenities, and assistive devices, and other equipment to promote their mobility.”

Sub-section 5 of Section 15, calls upon employers to provide facilities and make modifications, “whether physical, administrative or otherwise, in the workplace as may reasonably be required to accommodate persons with disabilities.”

Besides the obligations, there are incentives given to employers who employ persons with disabilities.

For instance, if an employer has in his employment any person with disability he is entitled to a tax exemption of 25 per cent of the salary or wages of the employee.

Subsection (2) further provides that “a private employer who improves or modifies his physical facilities or avails special services in order to provide reasonable accommodation for employees with disabilities shall be entitled to apply for additional deductions from his net taxable income equivalent to 50 per cent of the direct costs of the improvements, modifications or special services.”

Tax discounts

The incentives amount to tax discounts that are meant to encourage employers to engage persons with disabilities.

It works as long as the people so employed are accredited by the National Council of Persons with Disabilities (NCPD) with regard to their skills, qualifications and disabilities, and as long as the employers can provide proof that the affected persons are their employees.

Thus, if you are an employer and you have engaged people who have disabilities, or have spent money to modify your premises to become accessible to persons with disabilities, you should benefit from some tax discounts as long as all the conditions are fulfilled.

The adjustments are not limited to physical modifications, but also include the purchase of special machinery and equipment, such as disability-friendly computers and phones.

So, employers take advantage of the incentives and promote persons living with disabilities to enable them live a better life.

Ms Mugo is the executive director of the Federation of Kenya Employers. Email: [email protected]