Disability Management
Statements and Comments
Anne Marie Theisen
ACORD International s.a.
Part 1: Brief assessment of the context in Luxembourg that is relevant to the
Dutch policy
The concept of disability management and the way it is implemented in the Netherlands is an interesting policy under several aspects. First, it is for Luxembourg a new political, social and economic concept combining labour integration and job retention measures with absence management for people meeting health problems or being disabled. This means that although different approaches orientated on stimulating the employability and the adaptability of people with a disability or permanent health restrictions exist in Luxembourg, they are not conceptualised within a common scheme, as the Dutch system tries to do it. The Luxembourg system differentiates clearly between policies related to job retention and recruitment of disabled people on the one hand and prevention of health problems at the jobplace and concern of absence management on the other. Secondly, the implementation of the Dutch disability management is rather focused on a structured preventive approach and is using here mainly different types of awareness raising tools at company level combined with incentives and a strong legal job protection. This holistic approach appears as such quite innovative to Luxembourg. It seems though to be a feasible and recommendable political and economic instrument as it is not axed on strengthening an already strongly developed legal ground but on giving the existing ground a coordination platform. The Dutch approach seems also to meet national concerns of absence management which are actually quite strongly debated by the social partners and the government on the background of the recent rather preoccupying deficits in the Social Insurance System.
Disability management is defined by the authors as efforts on the workplace to improve the labour participation of employees with health problems which in the Dutch case are combined with prevention of absenteeism and return to work activities.
In Luxembourg, there exist preventive legal tools defined in the Occupational Health and Safety (OHS) acts of 17th June 1994 and 1st July 1998, which are basic acts concerning the transposition of
a European directive into national legislation. This applies also to the act of 14th December 2001 on
Occupational Health Services. The objective of this law is to insure the health protection on the workplace by organising a medical supervision and preventing vocational accidents and diseases. All these OHS acts touch the whole industry including all occupied people with the same aims and tools as in the Dutch system. The basic OHS requirements regulated by the law can be reinforced by specific measures defined by collective agreements negotiated either on branch or company level. The elected personnel representatives (‘délégués du personnel) have a.o. the mission to promote the labour integration of people with disabilities and have a preventive role consisting in helping to avoid industrial accidents and injuries.1 Thus the Luxembourg system appears to target the OHS
requirements broader than with the Dutch covenants system which applies to the branches where there have been negotiations. Further the European antidiscrimination directive has now passed the legal process and shall be enacted as of 2004. Nevertheless, it is correct to say that in the national
context of dealing with the employment of people with a disability or with severe health impairments, the legal emphasis is definitely put on job protection.
Two central acts appear here to be important. The first law, which should here be mentioned, is the modified act of 12th November 1991. It lays down the eligibility criteria in favour of labour integration
of disabled people in Luxembourg and defines the different intervention tools2. To be eligible for the
acknowledgement, the person must prove to have a reduced work-capacity of at least 30%, which is a more restrictive precondition, than in several other European member states and notably in the Netherlands, where it is 15%. Under this law, the recognition of the status as disabled worker is decided by an orientation commission called ‘Commission d’orientation et de reclassement professionnel’. After the envisaged acknowledgement has been done, the vocational integration of the disabled person may be supported either by training or rehabilitation measures, by job accommodation instruments (workplace adjustments, extra leisure days), as well as by financial incentives either for the disabled person or for the employer. The support measures are generally set for three years, but they may be renewed after an examination of the case. The present act foresees a quota system for public employers, engaging them to employ 5% of registered disabled workers among their staff. A control mechanism in order to look at the fulfilment of the current model with the public employers is not envisaged. The quota system for occupation in the private sector should be penalized by a financial constraint in case of non respect. According to the seize of the company, employers of 25 to 299 employees must be ready to choose, if available, for 2% of their workforce disabled workers registered at the Public employment service, threshold which, as of 300 employees, is lifted to 4% of the personnel. In case of not meeting the legal quota, the employer could be forced to pay a monthly fee equivalent to 50% of the legal minimum salary, which would presently amount to €702 per month. The existing penalties have yet not be applied.
The current act of 1991 shall be replaced by a new act on disabled people, that has been adopted recently, namely on 12th September 2003 and which will enter into force on 1st June 2004.
Several key changes are introduced by the new law, which concern mainly two big areas, i.e. procedural aspects and the introduction of a regular salary for disabled people in sheltered workshops. More specifically, this means that in the new act the decision to get the acknowledgement as disabled worker is attributed on the one hand to a medical commission and that the labour integration measures are decided on the other hand by the former orientation commission. To this is added a new advisory federation, called ‘Conseil supérieur des personnes handicapées’, which shall be formally consulted to advise in the legal process. The pointed out advisory body, chaired by an NGO for people with a disability, is mainly composed by these NGOs and government representatives. The disabled people, guided if relevant by the orientation commission to the sheltered workshops, shall be considered as disabled job seekers registered in an employment measure3. Their occupation shall be protected by a formal work contract to which the
legally fixed minimum remuneration, known as ‘salaire social minimum’ has to be applied. People, that on decision of the medical commission are considered as unable to work, will receive a guaranteed minimum income called ‘revenu pour personnes gravement handicapées’.
2 This law has been reviewed in the framework of the European Employment Strategy by a broad NAP act (Act of 12
The second law fixed in the same spirit on job protection of people with permanent health problems, is the legislation on occupational disability and vocational reintegration (act of 25th July 2002). It is a
law that comes into force in cases of long term sick leave of working people and should prevent the medical escape route from activity. Currently, if a person is no more able to exercise the last job assignment due to health problems, the case gets studied by a mixed commission which decides if the rehabilitation is to be done in the company of the worker or if it should be made outside. The intervention level is currently fixed at 4 months absence form the workplace. A first mixed commission in this field has pronounced its decisions in December 2002. Due to the mentioned act, a Department for workers with reduced labour capacity (‘Service des travailleurs à capacité réduite’) was created at the Public employment service (PES) with the mission to cover the several tasks in relation with the decided internal or external job placements. Rehabilitation measures or training as well as vocational guidance fall within the responsibilities of the new department. If the labour reintegration of the person cannot be operated within one year, the person gets eligible for the disability pension (“pension d’invalidité”). The expectations in this law to keep people in the active working process are put quite high, but can’t yet be evaluated, due to its very recent implementation. Fact is, that the political representatives wanted here to put a clear sign to improve the labour participation of the targeted people of a certain age risking to become inactive due to health impairments. Yet it can be said that the application of this law will not be smooth and easy. First cases of employers fighting the decisions of the mixed commission are brought to the courts and this law is costing lots to the National Health Insurance of manual workers. Here it should be said that the Luxembourg Health System differentiates for the payment of sickness absence between intellectual and manual workers in so far that sickness absence is paid as of the first day for manual workers by the insurance system and only after four months for the intellectual workers. The salary remains in both cases guaranteed at its 100% level for the occupied sick person. This dual treatment in the Luxembourg health insurance system should make a holistic disability policy an attractive prevention tool both for the employers and for the government.
The few examples show that Luxembourg’s social system is predominately axed upon the job protection. The financial incentives for the employer occupying a person with health problems or a disability are generous but they are linked to the formerly described administrative procedures. Up to now, the existing financial incentives for private or public employers have not provoked a significant take up in the employment of people with a disability. But, it is a fact, that no follow-up studies with users and non-users have been conducted in this field, in order to know what are the triggers or the barriers in the context of employment of people with health problems in Luxembourg. The question one could raise here, is if these reasons are well enough known through the important formal consultancy process, mobilizing the social partners and the political decision takers before the launching of a new law? To conclude on this, the political decision was taken to revise significantly the law of 1991 on people with a disability. As the new law is going quite further than the previous one and is more restrictive to employers either of the sheltered or of the open labour market and as the implementation of the 2002 law on occupational disability and vocational reintegration is problematic, it could be reflected if at least a deepened information and awareness raising process wouldn’t make sense?
Part 2: Brief assessment of the potential transferability of the measure to
Luxembourg
The Luxembourg system to retain people with a disability in the job and to increase their labour participation is directed on government intervention and less on awareness raising at company level. Absence management and preventive OHS measures are treated separately. Employers’ and workers’ representatives are formally consulted in the institutional and legal process. It is not sure, that this highly formalised approach can be compared to the so-called Dutch ‘Polder model’, consisting as explains the Dutch expert by starting the talks with the actors involved to make socially (broadly) based plans. The so-called Luxembourg ‘tripartite model’ is based on involving the nationally representative actors from the employers’ and workers’ side directly in the political negotiation, which must be the step after the design of the plans of the described Dutch consultancy practice. In Luxembourg, such plans are drafted in the administrations of the relevant ministries and they are in case of need discussed in working commissions. After the internal way, the drafts are proposed to the multiple partnership instrument which is the ‘Comité permanent de l’emploi’ and they are introduced afterwards in the ‘Tripartite’ commission.
The Dutch ‘National Committee of the Working Perspective’ as an advisory tool for the politics is an interesting step to prepare actions to overcome the several resistances related to the employment of people with a disability or with permanent health problems. As soon as multiple actions are envisaged, even a preparatory committee of political measures or a series of punctual actions, could only be imagined in Luxembourg as a multiple partnership instrument. The question, that would have to be dealt with in Luxembourg, would be if such a committee could be installed as a section within an existing formal advisory tool or if it would need to be created as a separate body. As the national institutional context is already overfed with commissions and committees and as the available experts to act in these bodies are limited, an efficient use of the existing structures would make sense. The risk in the national context would be, that without a recognised, clearly distinguishable structure, the visibility effect of actions in favour of working perspectives for disabled people and people meeting health problems, possibly will be limited. This inconvenience could be overcome with fixing a clear agenda and designing an action programme.
Not many information, on the factors that influence the employment of people with permanent health problems and disabilities, is available in Luxembourg. In this sense, existing research in other member states gives us a useful starting point of investigation. The company tissue in Luxembourg is formed as in the Netherlands of 98.45%4 of SMEs with less than 100 employees. Therefore the
general obstacles to employ disabled people might in Luxembourg be comparable to those found by the colleague research of TNO, i.e. poor job descriptions, fear of administrative burden and long lasting procedures, lack of time and interest for HRM and focus on the immediate production process.
The intervention field should be therefore orientated on these aspects in case of wishing to trigger the employment of the more difficult to place target groups.
The most difficult and delicate action field seems to be the change in the perception of the roles in the company. As changing attitudes are based on assuming fears, the Dutch approach of
studies and networking, seems to be very relevant. This is an approach we know to some degree from implementing a gender policy in companies in Luxembourg. This practice is started with a few companies and is assumed to provoke a positive domino effect of good examples.
The preconditions to show openness to disability management are linked to a general management policy based on handling diversity. The responsibility of the employers is linked to fulfilling their shareholder interests, but also to manage human resources in the most efficient way. And here, it is the motivation of the individual that is essential, evidence which might be the central argument in order to convince small enterprises that a balanced human resource management in general and a disability management in particular is good for them. The responsibility of the employer has to be supported by a legal framework, the everlasting question remains here how strong it should be. This might become a one-way policy if it is not accompanied with awareness raising tools, be these information on financial incentives, a company award or showing good practices as exercised by the Dutch government.
As to the question, how strong the social responsibility of employers can be, I would link this to the power they have in the political process. If their political participation is weak, their social responsibility may be low, if it is very strong as in the Luxembourg case, their social responsibility should be high.
Negative thresholds may be best overcome with a balanced mix of policies and measures, implemented in a coordinated way as the Dutch system is working.
Why the rate of disabled people in employment seems not to be linked to economic growth but to its decrease, might be linked to the fact, that disabled people remain vulnerable groups however strong their abilities are developed. This leads to the conclusion, that their employment is more a society than an economic choice and that it is linked to the feeling socially responsible.
European initiatives towards employers and employees with regard to disability management can contribute to explain in an objective way the mechanisms of the different systems and outline measures that work on the European playground. Their predominant role should be the information level.
Part 3: Important questions raised and debated in Luxembourg
The focus in the national policy in relation with disability and employment is at present put on both cited laws dealing with the job retention and labour integration of disabled workers. Their implementation needs important administrative efforts, on which concentrates currently the political attention and which implicates a complex structure of partners. Due to the very recent character of these legal measures, no other effects can for the moment be related. As shown by the Dutch approach, the linking of the implementation of the legal tools with a national action programme of awareness measures would positively complete the adopted approach and hopefully reinforce its effects. The challenge to be taken in Luxembourg would consist in getting aware of the necessity to link the different policies related to disability management as a cost reducing tool, which should also be possible to evaluate afterwards as such.
Legal References:
Loi du 12.11.91 sur les travailleurs handicapés: Mémorial A-76 du 18.11.91, p.1444, modifiée par la loi du 12.02.99: Mém. A–13 du 23.02.99. p.190
Loi du 12.09.03 relative aux personnes handicapées: Mém. A-144 du 29.09.03, p.2938
Texte coordonné du 01.07.98 de la loi du 17.06.94 concernant la sécurité et la santé des travailleurs au travail telle que modifiée par la loi du 06.03.98: Mém. A-50 du 01.07.98, p.738
Loi du 14.12.01 sur les services de santé au travail modifiant e.a. la loi du 17.06.94: Mém. A-149 du 27.12..01, p. 3258
Loi du 25.07.02 concernant l’incapacité de travail et la réinsertion professionnelle: Mém. A-76 du 30.07.02, p.1668
