Download article in original language : LU0310103FFR.DOC
Legislation adopted in Luxembourg in September 2003 seeks to improve the position and income of people with disabilities. All disabled workers will in future receive at least the minimum wage, while a new benefit will guarantee a basic income to people with disabilities who are unable to work.
Luxembourg has had legislation relating to disabled workers since 1991 (TN0102201S). However, the government decided in the light of the conclusions of the LisbonEuropean Council summit in March 2000 (EU0004241F), to do more on behalf of those particularly vulnerable individuals whose physical, mental, sensorial or other impairments, bearing in mind their needs and specific living conditions, undermine their economic independence and their full and unrestricted participation in life and society. A new law, adopted on 30 September 2003, thus seeks to promote the economic security and independence of people with disabilities, and to improve their socio-economic protection.
The law envisages a number of measures with a view to achieving these objectives. They concern both people who have sufficient capacity for work to carry out paid employment duties in a sheltered environment, and those who, because of the seriousness of their impairments, are unable to engage in any paid employment at all.
These measures have proved necessary because, notwithstanding a well developed system of social protection, the current situation as regards the financial resources of disabled people is marked by considerable disparity, and by unjustified inconsistencies that constitute an infringement of any genuine policy of equal rights and opportunities for people with disabilities. For example, there is no income guarantee for disabled people who are unable to take up even the lightest paid duties. The effect is that many disabled citizens meet none of the criteria required to qualify for social security benefits, or for benefits set out in the law on the guaranteed minimum income (revenu minimum garanti, RMG).
Few disabled workers employed in adapted working environments or sheltered workshops receive a proper wage for their work, and usually receive an employment insertion allowance or social security benefit, and sometimes an additional monthly allowance worth EUR 250 to encourage them to stay on in employment. It follows that the overwhelming majority of disabled workers in subsidised sheltered workshops fall outside the scope of employment legislation.
The law defines as'disabled' any worker considered able to carry out paid employment on the ordinary labour market or in a sheltered workshop, who have at least a 30% reduction in their capacity for work as a result of:
People may apply for the new severely disabled person’s income benefit (see below) if they meet the following conditions:
Some people who are not nationals of Luxembourg or other EU and European Economic Area countries may also qualify under the law if they meet certain residence qualifications.
People who are registered as disabled and who, for reasons beyond their control, have no access to paid employment may also qualify for the severely disabled person’s income.
The new law has the following three main aims.
The new law confers employee status on people with disabilities working in sheltered workshops, and places them under the protective rules of employment legislation, except for certain exemptions that derive from their specific needs and abilities. The employment contract must contain a number of references designed to establish commitments and to guarantee each party’s rights.
By providing that disabled workers employed in sheltered workshops - as well as in the private, local authority or state sector - must receive pay that is at least equal to the hourly rate of the statutory minimum wage for unskilled workers (LU0309101N), the law underpins the general principle that all who turn their working capacity to account must receive pay in exchange for their work, and irrespective of their economic output or of the work effectively performed. As the EU Directive establishing a general framework for equal treatment in employment and occupation (2000/78/EC) (EU0102295F). - which prohibits discrimination on the grounds of disability, among other grounds - is scheduled to be transposed into Luxembourg law by the end of 2003 (LU0308103T), previous legislative provisions allowing reductions in the pay of disabled workers whose employment productivity has diminished have been abolished.
Disabled workers employed in sheltered workshops qualify for health insurance, accident insurance and pension insurance benefits.
Any organisation that employs workers with disabilities must obtain Ministerial approval from the Ministry of the Family, designed to protect disabled workers by ensuring that the organisation meets certain conditions guaranteeing that these people are accommodated in the best possible way.
The law of 12 November 1991 on disabled workers provided that the state could subsidise from 40% to 60% of the cost of employing workers with disabilities in private sector enterprises and the local authority sector. Under the new legislation, the state subsidy may henceforth range from 40% to 100%, and will be based mainly on the development of the disability and/or of the disabled worker’s adaptation to the working environment.
The initial draft of the legislation provided for the setting up in sheltered workshops employing over 15 disabled workers of a specific employee committee (délégation du personnel) for these workers running, parallel to the committees representing other employees (LU0309102T). However, this idea was later abandoned. The general law in this area now applies to disabled workers, in line with the objectives of integrating disabled people and harmonising their working conditions.
The new law provides a new income benefit for:
This new income therefore seeks to guarantee people incapable of work real economic autonomy and security.
In this context, an important role has been given to two committees:
The new law confers legal status on the Higher Council for People with Disabilities (Conseil supérieur des Personnes Handicapées), which currently operates on the basis of a Ministerial Regulation of 16 December 1998. The composition of this body, which the new law has given the role of representing the interests of disabled people, reflects a wish to enable the disabled population to participate in the development of integration and non-discrimination policy.
Given a growing conflict between the needs of the ordinary labour market and the capacity for work of numerous individual people with disabilities, the sheltered workshop continues to be the only sustainable workplace for many. About 3% of those employed in a sheltered environment move to an ordinary working environment.
Now that the state employment subsidy can rise as high as 100%, it is likely that the new law, which comes into effect on 1 June 2004, will trigger an increase in the employment rate of people with disabilities in various sectors of the economy, thereby enabling them, while taking account of their specific needs and living conditions, to have full and unrestricted participation in life and society. (Marc Feyereisen)