germany

International Legislative Series

Labour Office 1986-Ger.F.R. 1

FEDERAL REPUBLIC OF GERMANY I

Notification to promulgate a consolidated text of the Severely Handicapped Persons Act. Dated 26 August 1986. (Bundesgesetzblatt, Part I, 2 September 1986, No. 45, p. 1421.)

[The translation which follows, first published in the Legislative Series as LS 1974-Ger.F. R. 3, now takes into account the notification of 8 October 1979. (Bundesgesetzbiatt, Part 1, p. 1649); section 20 of the Act of 14 March 1980 (ibid., p. 294), which entered into force on IS March 1980; subsection 3 of section 11 of the Act of 18 August 1980 (ibid., p. 1469), which entered into force on I January 198 1; section 6 of the Act of 22 December 1981 (ibid., p. 1523), which entered into force on I January 1982; subsection (3) of section 20 of the Act of 22 December 1983 (ibid., p. 1532), which entered into force on I January 1984 and subsections (1), (2) and (4) to (8) of section 20 of that Act which entered into force on I April 1984; section I of the Act of 18 July 1985 (ibid., p. IS 1 6), which entered into force on I October 1985; and of section I of the first Act mentioned above, which entered into force in accordance with its section I 0. ]

Act to ensure the integration of severely handicapped persons in employ-

ment, occupations and society (Severely Handicapped Persons

TABLE OF CONTENTS [abridged]

Sections

Division 1. Persons protected 1-4

Division 2. Obligation of employers to employ severely handicapped persons 5-12

Division 3. Other obligations of employers 13-14

Division 4. Protection against notice of termination 15-22

Division 5. Works, staff, states attorneys', judges' and central judges' councils; severely

handicapped persons' representatives; employers' representatives 23-29

Division 6. Implementation of the Act 30-37

Division 7. Forfeiture of the protection provided for severely handicapped persons 38-39

Division 8. [Appeals procedure] 40-43

Division 9. Miscellaneous provisions 44-53

Division 10. Encouragement of workshops for handicapped persons 54-58

Division I 1. [Public transport free of charge for severely handicapped persons] 59-67

Division 12. Offences, penalties and concluding provisions 68-72

DIVISION 1. PERSONS PROTECTED

1. Severely handicapped persons. In this Act the expression "severely handicapped person" means any person who is handicapped by at least 50 per cent, in so far as he or she is domiciled, normally resident or employed in a post covered by subsection (1) of section 7, within the scope of this Act.

2. Persons placed on the same footing as severely handicapped persons.

(1) Any person who otherwise fulfils the conditions set forth in section I and whose handicap is less than 50 per cent but at least 30 per cent shall normally be placed on the same footing as a severely handicapped person if a decision to that effect is taken at his or her request in accordance with section 4 by the local employment office and his or her handicap is such that he or she is, in the absence of such equivalent treatment, unable to obtain or retain a suitable job within the meaning of subsection (1) of section 7. The decision to place him or her on an equal footing with a severely handicapped person has effect from the date of the request. The decision may be limited in time.

(2) This Act, with the exception of section 47 and Division I 1, shall apply to any person placed on the same footing as a severely handicapped person.

3. Handicap. (1) In this Act the word "handicap" connotes the effects of functional difficulties which are not merely temporary in nature and which arise from an abnormal physical, mental or psychological condition. Any condition which is not within the norm for the age of the person concerned is considered to be abnormal. Any period exceeding six months is considered not to be merely temporary. In the case of functional difficulties which have a synergistic effect, the overall effect shall be determinative.

(2) The effects of functional difficulties shall be determined in terms of the

extent of handicap, measured in tens on a scale of 20 to 100.

(3) The standards governing evaluation as provided for under sub-

section (1) of section 30 of the Federal Act on war victims' relief shall apply, mutatis mutandis, to a determination of the extent of handicap.

4. Determination of handicap; certificate. (1) On application by a handicapped person, the authorities competent to administer the Federal Act on war victims' relief shall take a decision confirming the existence of a handicap and determining its extent. In so far as the Social Code' is not applicable, the Act respecting administrative procedures for the war victims' relief scheme shall apply, mutatis mutandis.

(2) No determination shall be made under subsection (1) if a decision confirming the existence of a handicap and determining the extent of any resultant reduction of earning capacity has already been taken as part of a decision in connection with a pension, a corresponding decision by an administrative or judicial authority or the issue of a temporary certificate by an official service having competence in relation to any such administrative or judicial decision, unless the handicapped person proves that he or she has an interest in obtaining some other decision under subsection (1). A determination under the first sentence of this subsection shall apply as well to a determination of the extent of handicap.

(3) Where a person is suffering from two or more functional difficulties, the extent of the handicap shall be determined by taking into account the interactive relationship of the functional effects of all such handicaps taken as a whole. Subsection (1) shall apply to the decision, unless an overall assessment has already been made in an overall evaluation made under subsection (2).

(4)-(6) [Determination in certain other cases; certificates; appeals.]

DIVISION 2. OBLIGATION OF EMPLOYERS TO EMPLOY SEVERELY HANDICAPPED

PERSONS

5. Extent of obligation. (1) Every private and public employer (hereinafter referred to as an "employer") having available at least 16 posts within the meaning of subsection (1) of section 7 shall employ severely handicapped persons in at least 6 per cent of such posts.

(2) Subject to the approval of the Federal Council, the Federal Government shall have power by ordinance to alter the ratio of reserved posts specified in subsection (1) in the light of the prevailing need for reserved posts for severely handicapped persons, subject, however, to a maximum of 10 per cent and a minimum of 4 per cent; for this purpose the ratio for public employers may be fixed above that for private employers.

(3) The following shall be deemed to be public employers for the purposes

of subsection (1):

I . every central federal authority and its subordinate administrative units, the Office of the Federal President, the administrative services of the German Federal Parliament and the Federal Council, the Federal Constitutional Court, the central courts of the Federal Republic, the Federal Court (together with the Federal Attorney General), and the German Federal Railways;

2. every central Land authority and the state and presidential chancelleries and their subordinate administrative units, the administrative services of the parliaments of the , the audit officers (chambers of accounts), the constitutional law authorities of the Länder and every other Land authority (on condition that authorities whose staff policies are administered jointly shall be taken together);

3. every other local authority and every association of local authorities;

4. every other corporation, institution or foundation governed by public law.

6. Employment of special categories of severely handicapped persons. (1) In meeting their obligations to employ handicapped persons, employers shall employ, to an appropriate extent:

1. severely handicapped persons whose working lives are especially affected, because of the nature of the seriousness of their handicap, in particular:

(a) those who need special assistance, on more than a temporary basis, in order to engage in employment; or

(b) 'those whose employment, owing to their handicap, implies exceptional expenses, on more than a temporary basis, for the employer; or

(c) those who, because of their handicap, are able, on more than a temporary basis, to render only substantially reduced output; or

(d) those whose extent of handicap is at least 50 per cent attributable to mental or psychological disturbances or to being subject to attacks; or

(e) those who, because of the nature or the seriousness of their handicap, have not completed vocational training within the scope of the Act on vocational training;'

2. severely handicapped persons who have attained the age of 50 years.

(2) Employers who have vocational training posts at their disposal. particularly for trainees, shall, within the framework of their obligation to employ the handicapped, place an appropriate number of severely handicapped persons in these posts.

7. Definition of "post". (1) In this Act the expression "post" means any job in which a worker, employee, public servant. 'judge, trainee or other person engaged for the purposes of vocational training is employed.

(2) Jobs shall not be regarded as posts if the following persons are employed

1. handicapped persons participating in rehabilitation programmes in establishments or institutions, including handicapped persons engaged in workshops or training workshops (section 54);

2. persons whose employment is not primarily for the purpose of their earning a living but is chiefly inspired by charitable or religious motives, or in jobs in religious or clerical societies governed by public law;

3 . persons whose employment is not primarily for the purpose of their earning a living but is chiefly for their own cure, rehabilitation or education;

4. persons participating in programmes for the creation of employment opportunities under sections 91 to 99 of the Employment Promotion Act; 3

5. persons elected to office in accordance with established practice.

(3) Jobs which, on account of the nature of the work or in accordance with agreements reached between the parties, are only occupied for a maximum of eight weeks, jobs in which workers are employed to an insignificant extent, as provided in section 102 of the Employment Promotion Act and jobs in which persons having a legal entitlement to their appointment are employed shall likewise not be regarded as posts.

8. Calculation of the minimum number of posts and of the number of reserved posts which are occupied. in the calculation of the number of posts reserved for handicapped persons under section 5, posts occupied by trainees shall not be counted until 31 December 1989. Fractions of 0.5 or over count as whole numbers,

9. Counting the number of reserved posts occupied. (1) Every severely handicapped person who is employed in a post within the meaning of subsection (1) of section 7 shall be counted as occupying a reserved post. This provision also applies to a severely handicapped person holding a post within the meaning of subsection 2 (1) of section 7.

(2) A severely handicapped person employed part time for less than the normal working hours in the establishment, but for at least 19 hours per week, shall be counted as occupying a reserved post. If a severely handicapped person is employed for less than 19 hours per week, the local employment office may authorise counting that person as occupying a reserved post if the reduced working hours are necessary on account of the type or severity of his or her handicap.

(3) An employer who is severely handicapped shall be counted as occupying a reserved post.

(4) A person holding a miner's disability card, even when not severely handicapped within the meaning of section 1, shall also be counted as holding a reserved post.

10. Counting towards more than one reserved post. (1) The local employment office may authorise the counting of a severely handicapped person, particularly a severely handicapped person within the meaning of subsection (1) of section 6 of this Act, towards more than one reserved post if his or her Integration in working life poses special difficulties. This provision also applies to the employment of severely handicapped persons on a part-time basis within the meaning of subsection (2) of section 9 of this Act.

(2) A severely handicapped person employed for purposes of his or her training shall. until 31 December 1989, be counted as occupying two posts. The local employment office may, until 31 December 1989, authorise counting a severely handicapped person as occupying three posts if the provision of vocational training in a trainee post poses special difficulties on account of the type of the severity of his or her handicap.

(3) Decisions which were adopted before I August 1986 regarding the counting of a severely handicapped person as occupying more than three posts remain valid.

11. Equalisation contributions. (1) For such time as employers are not employing the prescribed number of severely handicapped persons, they shall pay a monthly equalisation contribution in respect of each reserved post remaining unfilled. The payment of the contribution shall not relieve the employer of the obligation to employ severely handicapped persons.

(2) The equalisation contribution shall be at the rate of 150 DM a month for each reserved post remaining unfilled. It shall be remitted annually by the employer at the same time as the report required under subsection (2) of section 13 is submitted to the central assistance office for the place where the business is located. Where an employer is more than three months in arrears, the central assistance office may, after 31 March, impose an additional late charge in accordance with the provisions of section 24 of Book IV of the Social Code. I Objections and challenges to the decision fixing the amount of the arrears do not act to suspend the obligation to pay. In the case of private employers the amount shall be recovered by distraint in accordance with the provisions governing administrative enforcement procedures. In the case of public employers the central assistance office shall apply to the supervisory authority, against whose decision it may appeal to the central federal or Land authority. Subsequent claims for contributions and refunds of contributions shall not be permitted after the expiry of one calendar year from the date of the receipt of notification by the local employment office.

(3) Sums collected in equalisation contributions shall be used only for the purposes of promoting employment and vocational opportunities for severely handicapped persons and for the provision of follow-up assistance in their working and professional lives (clause 3 of subsection (1) of section 3 1), in so far as no funds for the same purpose are required to be made available, or have been made available, from any other source. Administrative expenses for staff and materials and the cost of processing claims shall not be defrayed from the amount collected from equalisation contributions. The Federal Government is empowered to issue ordinances, with the approval of the Federal Council, setting forth detailed provisions on the use of equalisation contributions; the provisions of subsection (2) of section 12 remain applicable notwithstanding. The central assistance office shall, if so requested by the advisory committee on handicapped persons set up under each such office (section 32), report to it on the use made of equalisation contributions.

(4)-(7) [Equalisation funds.]

12. Equalisation Fund. (1) In order to promote the placement and employment of severely handicapped persons in posts within the meaning of subsection (1) of section 7 and to encourage facilities and measures which serve the interests of several Liinder in the field of vocational and employment promotion for severely handicapped persons, an earmarked fund, the "Equalisation Fund for Inter-regional Measures for the Integration of Severely Handicapped Persons in Employment, Occupations and Society", shall be established as from the date of the entry into force of this Act. The Fund shall be under the Minister of Labour Affairs, who shall administer it.

(2) [Regulations.]

DIVISION 3. OTHER OBLIGATIONS OF EMPLOYERS

13. Employers' obligations towards the Federal Labour Office and the central assistance offices. (1) [Employer to maintain and make available a register of the severely handicapped persons employed.]

(2) [Employer to report annually on the number of reserved posts, the number of posts and training slots occupied by severely handicapped persons, instances of multiple counting and the total amount of equalisation contributions owed; copies of report to works, staff, states attorneys', judges' and central judges' councils, as well as to the severely handicapped persons' representative and the employer's representative.]

(3) [Provision of information necessary to implement the Act.]

(4) [Obligation to allow inspection of the establishment under certain

circumstances. ]

(5) [Prompt notification of the authorities of the name of the person elected

as the severely handicapped persons' representative.]

(6) [Indication in the notice to be given, under subsection (1) of section 8 of

the Employment Promotion Act,' of the severely handicapped persons affected and the number of reserved posts reduced. 1

14. Employers' obligations towards severely handicapped persons.

(1) Every employer shall be required, when filling vacancies, to examine whether severely handicapped persons, especially those registered with the local employment office, can be employed in them. The employer shall invite the participation of the severely handicapped persons' representative provided for in subsection (2) of section 25 in this examination, and shall hear the views of the representatives provided for in section 23. Applications from severely handicapped persons shall be discussed with the severely handicapped persons' representative and shall be communicated to the works or staff council along with the employer's views. Applications from severely handicapped judges shall be discussed with that representative and shall be communicated to the central judges' council [Prdsidialrat], along with the employer's views, in so far as that council is required to be involved in the appointment. The second sentence of this subsection shall not apply where a severely handicapped person expressly rejects the participation of the severely handicapped persons' representative.

(2) Every employer shall so employ severely handicapped persons that they are enabled to use and develop their abilities and knowledge to the fullest possible