|Korean Labor Law Promoting Employment of Persons with Disabilities & Their Protection in the Workplace
Persons with disabilities also have the right to pursue happiness with dignity and value as human beings, and are entitled to state protection of these rights (Articles 10 and 34 of the Constitution). In accordance with this principle, employers of at least a certain size are obliged to hire persons with disabilities, and laws prohibiting discrimination against them in employment are being, and have been, implemented. Accordingly, employers shall provide employment opportunities to such persons and shall not discriminate against any workers in personnel management, such as in hiring, promotion, transfer, education and training, etc., merely on the grounds that the workers have disabilities. When discrimination does exist, separate legal remedies are provided to ensure the effectiveness of their protection.
In spite of these strict legal systems, many employers choose to pay the employment levy instead of hiring persons with disabilities. In accordance with the urgent demand for greater awareness of the social acceptability of persons with disabilities, Education on Improving Workplace Awareness of Persons with Disabilities is a new statutory form of education established in 2018, with associated penalties for failures by employers to implement such education. If employers are unable to fulfill their obligation to hire persons with disabilities, companies know they only need to pay the employment levy instead. However, since related and legally-required education has been introduced, what follows is a detailed definition of persons with disabilities, the required employment promotion measures, prohibition against discrimination and remedy for infringed rights, and education on improving workplace awareness of persons with disabilities. We then comprehensively review the working standards for persons with disabilities.
II. Definition of & Obligation to Employ Persons with Disabilities
1. Definitions & Related Laws
Korea labor law related to persons with disabilities includes the Act on the Employment Promotion and Vocational Rehabilitation of Persons with Disabilities (hereinafter referred to as the "Employment Act for Persons with Disabilities") and the Act on the Prohibition of Discrimination against the Disabled (hereinafter referred to as the "Act Against Discrimination of Persons with Disabilities") . The purpose of the Employment Act for Persons with Disabilities is to contribute to the employability of such persons so that they may live as regular members of society through work suited to their abilities (Article 1). Here, the term “person with disabilities” refers to someone who has had his/her long-term working life substantially restricted due to a physical or mental disability that corresponds to the standards prescribed by Presidential Decree. There are 15 types of disability specified in Article 2 of the Enforcement Ordinance of the Act on Welfare for Persons with Disabilities: ① physical disabilities, ② brain lesions, ③ blindness, ④ deafness, ⑤ language disability, ⑥ mental retardation, ⑦ developmental disability, ⑧ mental disorder, ⑨ kidney disorder, ⑩ cardiac disorder, ⑪ respiratory disorder, ⑫ liver disorder, ⑬ facial disorder, ⑭ intestinal fistula ⑮ epilepsy with other disabilities.
The purpose of this Act Against Discrimination of Persons with Disabilities is to prohibit discrimination on the basis of disability in all aspects of life, and to effectively safeguard the rights and interests of individuals discriminated against on the grounds of the disability, thus enabling them to fully participate in society and establishing their right to equality which will ensure their human dignity and sense of value (Article 1). This law stipulates the concept and criteria for discrimination against persons with disabilities, and also provides a framework for judging discrimination based not only on employment but also access to and use of education, goods and services, judicial and administrative procedures, services and political rights, motherhood and fatherhood, family, home, welfare facilities, and right to health. It prohibits discrimination and stipulates the right to relief for victims of discrimination through the National Human Rights Commission Act (NHRCA). In Article 9, the Disability Discrimination Act provides that "the prohibition of discrimination on grounds of disability and the right to relief under the Act shall be in accordance with the provisions of the NHRCA, except as provided in this Act."
2. Obligation to Employ Those with Disabilities
An employer who employs 50 or more persons at any time shall be deemed to be obligated to employ persons with disabilities to the rate prescribed by the President (hereinafter referred to as "the mandatory employment rate") up to 5 percent of the total number of employees (Article 28 of the Employment Act for Persons with Disabilities). The mandatory employment rate from 2019 is 31/1000 (Article 25 of the Enforcement Decree). Here, "ordinary employment" refers to an employee who has 16 or more working days per month regardless of the type of labor contract. Specifically, the number of employees hired for 16 days or more per month is calculated by dividing the number of months of operation (minus month(s) with less than 16 days of operation) for one year (Article 24 of the Enforcement Decree).
The Minister of Employment and Labor may pay an employment incentive calculated in proportion to the number of persons with disabilities who have been hired exceeding the standard employment rate, including employers who are not subject to employment obligations. The payment unit price shall be within the range of the minimum wage converted on a monthly basis, and shall be preferentially set for those with severe disabilities and women with disabilities (Article 30 of the Employment Act for Persons with Disabilities).
3. Employment Levy on Companies Failing to Employ Persons with Disabilities
Employers who do not hire persons with disabilities, or do not meet the mandatory employment rate, must pay an annual employment levy to the Minister of Employment and Labor. However, employers with fewer than 100 permanent employees are exempted from this obligation. Employers subject to the obligation to employ persons with disabilities shall declare in writing their number of permanent employees per month, their number of employees with disabilities and the amount of levy (if any) paid each year by January 31 of the following year, and shall pay the levy for that year. The Employment Levy for Persons with Disabilities is the annual sum of the total number of persons with disabilities to be hired under the mandatory employment rate minus the number of persons with disabilities regularly employed each month multiplied by the burden base amount (Article 33 of the Employment Act for Persons with Disabilities).
III. Discrimination Against Those with Disabilities
1. Criteria for determining discrimination
Direct discrimination is where (1) those with disabilities are treated unfavorably, due to their disability, through restriction, exclusion, separation, or denial without justifiable reason (Article 4 (1) of the Act Against Discrimination of Persons with Disabilities).
Indirect discrimination refers to (2) when persons with disabilities who are not adversely affected by restrictions, exclusion, separation, or rejection in a formal way but still undergo adverse consequences for their disability by applying criteria to them, without justifiable cause, that do not consider their specific situation; (3) where reasonable accommodation is not provided to persons with disabilities without just cause. Here, "reasonable accommodation" refers to that which would enable the person with disability to participate in the same activities as those without disabilities, including facilities, tools, services, etc., taking into consideration the gender of the person with the disability; (4) behavior by a person in a way that directly advertises or promotes adverse treatment such as through restriction, exclusion, separation, rejection, etc. without justifiable reason. In this case, the advertisement usually includes actions deemed to have an advertising effect that promotes adverse treatment; (5) In the from above (1) to (4), discrimination against a person who is dealing or accompanying a person with a disability for the purpose of helping a person with a disability In this case, acts by persons with disabilities against other persons with disabilities shall also be subject to determination as discrimination on the basis of that which is prohibited by this Act; (6) interfering with the legitimate use of assistance animals or devices for those with disabilities, or other acts prohibited by Article 4 against assistance animals and devices for those with disabilities (Article 4 of the Act Against Discrimination of Persons with Disabilities).
Actions that are taken in accordance with the following situations are not considered unjustifiable discrimination: (1) Excessive burden or considerable difficulty is incurred by avoiding prohibited discrimination, making it inevitable due to the nature of specific work or business performance; (2) Active measures taken by this Act or other laws and ordinances to realize the real equality of persons with disabilities and to correct discrimination against persons with disabilities shall not be regarded as discrimination under this Act (Article 4 of the Act Against Discrimination of Persons with Disabilities).
If there are two or more causes for discriminatory action but the main cause is recognized as due to a disability, the action shall be regarded as discrimination under this Act. When judging discrimination, the gender of the person with the disability, the type and degree of the disability, and other characteristics of the person with disability shall be fully considered (Article 5 of the Act Against Discrimination of Persons with Disabilities).
2. Discrimination correcting organization and remedies for infringed rights
In the event a person is discriminated against in a way prohibited by the Act Against Discrimination of Persons with Disabilities, that person or any person or organization who knows this fact may appeal to the National Human Rights Commission (NHRC). Even if there is no complaint, the NHRC may investigate in its own power when there is a reasonable cause to believe discrimination has occurred that is prohibited by the Act Against Discrimination of Persons with Disabilities (Article 38 and 39).
The NHRC shall notify the Minister of Justice of the details of any recommendation for the forbidden discrimination behaviors. The Minister of Justice gets involved in cases where a person who receives a recommendation from the NHRC does not carry out the recommendation without justifiable cause. This can include: (1) a failure to implement recommendations for discriminatory acts against multiple persons; (2) a failure to implement recommendations for repeated discriminatory acts; and (3) intentionally disregarding a recommendation to disadvantage the person being discriminated against. The Minister of Justice may also get involved if he/she deems a correction order is necessary and the degree of real or potential damage is severe and the effect on the public interest is recognized as serious (Article 43 of the Act Against Discrimination of Persons with Disabilities). Corrective orders can include ① suspension of the discriminatory acts, ② compensation for damage, ③ implementation of measures to prevent recurrence, and ④ other measures deemed necessary to correct the discrimination.
Any party contesting the order of correction by the Minister of Justice may file an administrative suit within thirty (30) days from the date of receipt of the order. The order of correction shall be finalized if no action has been filed within this period of time (Article 44 of the Act Against Discrimination of Persons with Disabilities). The Minister of Justice may impose a fine of up to KRW 30 million against persons failing to follow a correction order without just cause (Article 50 of the Act Against Discrimination of Persons with Disabilities).
IV. Compulsory Education on Protecting the Rights of Persons with Disabilities
1. Compulsory Education & Related Penalties
Employers shall work to eliminate bias in the workplace against those with disabilities, create stable working conditions for them, and educate their workforce to improve their awareness of persons with disabilities. Mandatory education covers all businesses or workplaces employing more than 50 workers and shall consist of one hour per year. Employers shall keep records related to the education for 3 years. (Articles 5-2, 5-3, 86 of the Employment Act for Persons with Disabilities, and (3) Article 5-2 of the Enforcement Decree).
2. Content of Mandatory Education
Education to improve workplace awareness of persons with disabilities shall include: ① the definition of disability and types of disability; ② human rights, prohibition of discrimination against, and provision of fair accommodations for persons in the workplace with disabilities; ③ laws and systems related to employment promotion and vocational rehabilitation of persons with disabilities; and ④ other contents deemed necessary to improve workplace awareness of persons with disabilities. This education can be done collectively, as an inquiry or a meeting, or through remote education using the Internet or other communication network, or experiential education in consideration of the size and characteristics of the business (Article 5-2 of the Employment Act for Persons with Disabilities).
All people need to have social consideration for people with disabilities as all live with the possibility of becoming disabled themselves. There is a societal need to better ensure the employment of persons with disabilities and prohibit discrimination against them. In addition, employers and workers need to learn how to protect the rights of their colleagues with disabilities and guard against discrimination. I hope businesses in Korea will take this new opportunity to improve the treatment of this sector of society in the workplace through legally-mandated education.