By Kethosinuo Tepa
Persons with disabilities are protected by the same laws as everyone else and share the same general employment rights as other job seekers and employees. However, there are also special terms for them under the Rights of Persons with Disabilities (RPwD) Act, 2016 which was passed by the government of India. The Act and the Rules replaced the 1995 legislation and introduced substantial changes to the rights and protections of people with disabilities.
The RPwD Act, 2016 states that “the appropriate Government shall ensure that the PwD enjoy the right to equality, life with dignity, and respect for his or her own integrity equally with others”.
Salient Features of the Rights of Persons with Disabilities Act, 2016 with regard to Employment
Under Section 34 of this act, the types of disabilities have been increased from 7 to 21. The act has added mental illness, autism, cerebral palsy, muscular speech and language disability, multiple disabilities including deaf-blindness, acid attack victims, and Parkinson’s disease which were largely ignored in the earlier act. It further increased the quantum of reservation for people suffering from disabilities from 3% to 4% in government jobs. In the 4% reservation, the first preference of 1 % each will be given to persons with blindness and low vision, then deaf and hard of hearing, and 1 % for locomotive disability, and autism & intellectual disability, and multiple disabilities. This, however, does not apply to private establishments.
Another feature is ensuring reasonable accommodation under Section 20; a reasonable accommodation is an integral part of non-discrimination in employment. It is defined as any necessary or appropriate modification or adjustments without it being disproportionate to ensure that PwD has equal enjoyment of rights as others. Thus, moving the focus from the individual to the environment and how the ecosystem needs to be modified to meet the needs of persons with disabilities. Some examples of reasonable accommodation are:
·Providing assistive technology or devices such as computer screen readers and magnifiers for employees with visual impairments
· A specific telephone that is compatible with an employee’s hearing aid, acquiring or modifying equipment or devices, adjusting or modifying tests and training materials, for example, providing materials in alternate formats, such as braille, CD, or large print.
Importantly, the RPwD act for the first time brings private companies under the purview of disability legislation by mandating that private employers have equal opportunity policies, provide reasonable accommodations, and prevent discrimination, among other obligations. While Indian private establishments are exempt from reserving jobs for persons with disabilities, Section 21 of the Act requires them to adhere to a slew of obligations:
·The head of a private establishment is obligated to ensure that no person with a disability shall be discriminated against on the ground of his/her disability.
·Establishments must prepare and publish an Equal Opportunity Policy (EOP) for persons with disabilities which must contain - details regarding facilities for persons with disabilities, lists of posts identified for persons with disabilities, training, promotion opportunities, allotment of accommodation, and provision of assistive devices and barrier-free accessibility.
·If a company fails to comply, both the company and an individual can be held responsible. Directors, officers, and managers of a company will be individually liable if it is established that the offense was committed with their consent or is attributable to their negligence.
The RPwD act also provided clearer definitions of previously vague terms, such as discrimination, barrier, and person with disabilities. Additionally, it outlined clearer policies around accessibility and set deadlines for implementation. It also prohibits denying promotions on the basis of disability. The appropriate government is required to identify suitable posts for PwD, constitute an expert committee for that purpose, and review the identification periodically.
The act mentions that no government shall reduce a rank or dismiss a person if a person acquires a disability during the service and should make transfer policies for persons with disabilities. An employee, who acquires a disability during his service, is sought to be protected under Section 47 of the Act specifically. The Section further provides that if an employee after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits. The persons with disabilities may be exempted from the rotational transfer policy/transfer and be allowed to continue in the same job, where they would have achieved the desired performance. Further, preference in place of posting at the time of transfer/promotion may be given to the persons with disability subject to the administrative constraints.
The act provides for grant of guardianship by the District Court under which there will be a joint decision–making between the guardian and the persons with disabilities. The Act empowers the Executive Magistrate and the local police (within whose jurisdiction the establishment lies) to receive complaints regarding exploitation of any person with disability and to take action in respect thereof.
How the act has been implemented so far -
The RPwD Act is considered significant progress in terms of legislation, unfortunately, the implementation of the law has been halting since its enactment.
There are still many challenges faced with enforcing the RPwD Act. Firstly, employers are often unaware of the provisions in the act that are laid down for companies. Furthermore, companies are rarely monitored by the government to make sure they are following the law. PwDs also face unclear procedures where government authorities are often unaware of the guidelines of the law and which disability types are covered. There are also a lot of hurdles even in the identification of posts; posts are either not identified or identified but not reserved.
Ultimately, greater clarity of the law, streamlined processes, and actual enforcement are necessary for the mission of the RPwD Act to be fully realized. The government should set up monitoring mechanisms to make sure that employers and companies comply with the laws whether it is drafting company policies or making the office more accessible.
Rights of Persons with Disabilities Act, 2016 is a good beginning but the rights of PwDs will be protected and fulfilled only if this Act will be implemented in its true spirit. Entire government machinery and the society at large will have to be informed and sensitized toward the needs and equality of PwDs. Equal opportunity for all cannot be achieved only by passing a law. The entire society has to participate in creating such opportunities.
To know more about the RPwD Act, watch Eyeway Encounters with Jayna Kothari: https://youtu.be/tu2QnWLD-98