India: The Rights Of Persons With Disabilities Act, 2016 - Extended To Private Employers

Last Updated: 17 August 2017
Article by   Trilegal

Unlike its predecessor, the Rights of Persons with Disabilities Act, 2016 imposes obligations on private establishments to formulate an equal opportunity policy and maintain records of persons with disabilities employed by them.

The Rights of Persons with Disabilities Act, 2016 (Act), which replaces the 1995 law on disability, was brought into effect on 19 April 2017. The Rights of Persons with Disability Rules, 2017 (Rules) were notified on 15 June 2017 to supplement the provisions of the Act. The Act is in line with the principles of the United Nations Convention on the Rights of Persons with Disabilities and aims at encouraging establishments to have a disabled friendly workplace. The Act prohibits discrimination against persons with disabilities, unless it can be shown that such act is a proportionate means of achieving a legitimate aim.

While the applicability of the 1995 statute was restricted to government controlled/aided establishments, the Act has now brought private establishments within its ambit. Though the Act or the Rules do not require private establishments to mandatorily appoint Persons with Disabilities (PwD), there are certain obligations imposed on private establishments under the Act, that are briefly described in this update. The definition of private establishment under the Act is also quite broad and includes companies, firms, co-operative or other societies, associations, trusts, agencies, institutions, organizations, unions and factories.

Compliance for Private Employers

While most of the provisions under the Act continue to address government and/or local authorities, some key obligations cast on private establishments include:

(a) Formulating an equal opportunity policy, which sets out the amenities to be provided to PwD to enable them to discharge their duties effectively. If there are 20 or more employees, the policy should also set out the job roles within the establishment that are identified as suitable for PwD, the recruitment process for such roles, trainings provided for these roles, preference in transfer and posting, special leave that PwD can avail, assistive devices provided for PwD and measures taken to ensure barrier-free accessibility. The policy should be registered with the authority appointed under the Act and should also be displayed on the establishment's website. If it is not feasible to display the policy on the website, it must be displayed at a conspicuous place in the office premises.

(b) Appointing a liaison officer to supervise recruitment of PwD and provision of requisite facilities if the establishment has 20 or more employees. The details of the liaison officer should be included in the policy as well.

(c) Maintaining records containing details around the number of PwD employed, their date of joining, names, gender and addresses, nature of their disabilities, nature of work performed by them, and the facilities provided to them; and

(d) Ensuring compliance with specified standards of accessibility relating to physical environment, transport and information and communication technology. These include ensuring that the building has elevator/ramps for the benefit of wheel chair users, adhering to a minimum width of walkways, ensuring that documents on the website are in optical character reader (OCR) PDF based format, etc. The Act further provides that no establishment should be issued a certificate of completion unless it has adhered to the accessibility norms formulated by the government. For existing buildings, the obligation is to adhere to these standards within 5 years from the notification of the Rules.

Non-compliance with respect to any of the above obligations could result in the imposition of a fine of up to INR 10,000 in the first instance and up to INR 500,000 for subsequent non-compliances.

Some Concerns

(a) No 'appropriate government' prescribed for private establishments - Statutes in India typically define which government, i.e. the State Government or Central Government, is the appropriate authority in relation to different types of establishments for purposes of ensuring compliance with the law. While the Act defines who the appropriate government is in relation to establishments wholly or substantially funded by the Central and State Government respectively, it is silent with respect to private establishments.

Given this anomaly, on a strict reading of the Act, there is currently no government which has the authority to monitor the implementation of the provisions of the Act in private establishments. This could lead to several issues. For example, one of the obligations imposed on private establishments is to register the policy with the Chief Commissioner or the State Commissioner, as appointed by the appropriate government. Since an appropriate government has not yet been identified vis-ŕ-vis private establishments, the relevant Commissioner with whom such policy can be registered has also not been appointed.

(b) Lack of clarity on specific obligations - While the Act and Rules require private establishments to specify the types of facilities, amenities, special leave entitlement, assistive devices, etc. provided to PwD in the equal opportunity policy, it does not specify the quantum or purpose of such special leave, or any mandatory or minimum entitlements that PwD can claim as a right under the Act. Therefore, it appears that the intent of the Act is to primarily encourage establishments to voluntarily provide for facilities and amenities, and ensure a disabled friendly workplace.

(c) Collecting information from employees who are PwD- Currently, many organizations do not collect data on disability. It is therefore important to put into place processes for collecting such information, both for existing employees and new hires. The data being collected (such as the nature of the disability) under the Rules would qualify as 'sensitive personal information' under the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (Data Protection Rules). It would therefore be necessary to ensure that the individual's consent is obtained prior to collecting such data. To the extent such data is collected and stored in electronic form, the requirements under the Data Protection Rules will need to be complied with.

While the Act or the Rules do not require private establishments to recruit PwD, they will now have to identify suitable posts for PwD, revisit their hiring practices and also remodel their HR policies where necessary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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