Paloma da Silva Aguiar
Lawyer at Marcos Martins Advogados
According to the Portuguese Online Dictionary¹, disability is: “Organic or mental insufficiency. Defect that a thing has or loss that it experiences in its quantity, quality or value.”
However, for a better legal understanding, it is necessary to look at the denomination of the term “Disability” in Article 2 of the Brazilian Law for the Inclusion of People with Disabilities (Law No. 13.146, of July 6, 2015), “in verbis”:
“Art. 2 A person with a disability is considered to be one who has a long-term physical, mental, intellectual or sensory impairment, which, in interaction with one or more barriers, may obstruct their full and effective participation in society on equal terms with other people.” (emphasis added).
This same law even makes provision for these barriers in Article 3(IV), which for a better understanding will be shown in the dynamic table below:
It is important to emphasize that every person with a disability has the same right as everyone else, which includes opportunities, and consequently cannot suffer any kind of discrimination in this regard.
These opportunities also include the right to work, including in an accessible environment, and with the participation of people with disabilities in courses, training, career plans, bonuses and other incentives, in the same way as other employees.
This issue is extremely important, and it is the employer’s obligation to hire not only rehabilitated beneficiaries, but also qualified disabled people in their workplace.
The “caput” of article 93 of Law 8.213/1991² even states that:
“Art. 93. The company with 100 (one hundred) or more employees is obliged to fill from 2% (two percent) to 5% (five percent) of its positions with rehabilitated beneficiaries or qualified disabled people, in the following proportion:
I – up to 200 employees……………………………………………2%;
II – from 201 to 500…………………………………………………….3%;
III – from 501 to 1,000…………………………………………………4%;
IV – from 1,001 onwards…………………………………………..5%;
V – (VETADO). (Included by Law No. 13.146, of 2015)” (emphasis added).
This percentage must be taken seriously by employers, since if they want to dismiss a disabled person without just cause, or simply due to the end of a fixed-term contract of more than 90 (ninety) days, they must replace the vacancies with other disabled workers or rehabilitated Social Security beneficiaries, even before the aforementioned dismissal.
MF Ordinance No. 15 of January 16, 2018, published in the Official Gazette on January 16, 2018, provides for new fines to be imposed on employers who fail to comply with the percentage set out in the Quotas Law.
The fines range from R$2,331.32 (two thousand, three hundred and thirty-one reais and thirty-two cents) to R$231,130.50 (two hundred and thirty-one thousand, one hundred and thirty reais and fifty cents), which is equivalent to each disabled person not actually hired.
What’s more, it should be noted that the Regional Labor Court – TRT of the 02nd Region, in a recent decision³, held that the difficulty the Employer experiences in hiring the necessary percentage of disabled employees does not remove the consequence of non-compliance with the law, which is the imposition of a fine equivalent to the number of disabled employees not actually hired.
Thus, and in view of all the discussion that has taken place, there is an effective need to comply with the Quotas Law, since even the allegation of difficulty in hiring does not rule out the imposition of a fine for non-compliance with the rule in force.
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¹ Dicio. Online Portuguese Dictionary. Available at < https://www.dicio.com.br/deficiencia/>. Accessed on October 31, 2018.
² BRASIL. Law No. 8.213, of July 24, 1991. Provides for Social Security Benefit Plans and other measures. Planalto. Available at: <http://www.planalto.gov.br/ccivil/leis/L8213cons.htm>. Accessed on: 31 Oct 2018.
³ Main Proceeding No. 1000353-56.2018.5.02.0472; Writ of Mandamus, Proceeding No. 1002613-67.2018.5.02.0000 (decision contained in this Writ).
