Employment of Persons with Disabilities

What employment of persons with disabilities means

Employment of persons with disabilities (توظيف ذوي الإعاقة), also called disability employment, is the obligation the Saudi Labor Law (نظام العمل) places on an employer to ensure that persons with disabilities make up at least a minimum share of its workforce. It comes with provisions in the Implementing Regulation (اللائحة التنفيذية) that prohibit discrimination on the basis of disability and require accommodation arrangements at the place of work.

Where it sits in the Labor Law, employment of persons with disabilities is a quantitative and procedural obligation on the establishment, not a matter of discretion or goodwill on its part. It is quantitative because the Labor Law expresses it as a share of headcount, and procedural because the Implementing Regulation attaches data to it that a labour inspector can ask to see. The definition treats the term in that sense alone.

The employment of persons with disabilities quota in Article 28 of the Labor Law

Article 28 of the Labor Law sets the quota at a minimum of 4% of the total number of workers, and addresses it to an employer that employs twenty five workers or more. The same sentence of Article 28 of the Labor Law carries two qualifications. It applies where the nature of the employer’s work allows it to employ persons with disabilities who have been vocationally rehabilitated, and the 4% is made up of persons with disabilities who are vocationally qualified, whether they come through nominations from employment channels or by another route.

The threshold is a count of the establishment’s workers. Its revenue plays no part in it. An establishment with fewer than twenty five workers falls outside the quota, and reaching twenty five brings an employer within Article 28 of the Labor Law, subject to the condition on the nature of its work.

The text of Article 28 of the Labor Law goes no further on how the quota is measured. It sets no method for a period in which headcount rises and falls, and it does not say whether a part time job counts towards the 4%. Neither point is inferred from the wording of Article 28 of the Labor Law, and an employer that needs an answer to either has to look for it outside that wording.

What the Implementing Regulation adds to employment of persons with disabilities

Article 9 of the Implementing Regulation implements Article 28 of the Labor Law, together with Annex 2 to the regulation. Among its provisions are three definitions and four rules.

The three definitions are these:

• Disability. Under paragraph (1) of Article 9 of the Implementing Regulation, a person with a disability is a person shown to have one or more permanent disabilities, by a medical report from the Ministry of Health or from hospitals in other government sectors, or by an identification card issued by the Ministry of Human Resources and Social Development. The paragraph lists visual, hearing, intellectual, physical and motor disabilities, learning difficulties, speech difficulties, behavioural and emotional disorders and autism, and closes with any other disability that calls for some form of accommodation.
• Ability to work. Paragraph (3) of Article 9 of the Implementing Regulation defines it as the person with a disability meeting the conditions for the job or work applied for, including academic, professional or skill requirements, so that the person can carry out the duties of the work.
• Accommodation arrangements (الترتيبات والخدمات التيسيرية). Paragraph (2) of Article 9 of the Implementing Regulation defines them as engineering modifications and the adaptation of working conditions and the working environment to the standards in Part Two of the architectural requirements volume of the Saudi Building Code (كود البناء السعودي), together with any of the arrangements in the guidance table annexed to the regulation as Annex 2, where they are necessary to enable the person to carry out the duties of the work. The specification is therefore tied to two written references that an establishment can consult.

The four rules are these:

• No refusal of employment because of disability. Under paragraph (7) of Article 9 of the Implementing Regulation, disability in itself may not be the reason for refusing to employ a person with a disability, where the condition of ability to work in paragraph (3) is met.
• No blocking of promotion because of disability. Paragraph (7) of Article 9 of the Implementing Regulation applies the same rule to promotion, on the same condition.
• No discrimination in pay on the basis of disability. Paragraph (8) of Article 9 of the Implementing Regulation prohibits discrimination in wages between workers on that basis. A pay difference between two workers is examined alongside internal pay equity, which compares pay across jobs and employees inside the same establishment.
• Data available to labour inspectors. Paragraph (9) of Article 9 of the Implementing Regulation requires the establishment to keep data on the number of its workers with disabilities, the nature of their work, their wages and the accommodation arrangements provided to them, and closes with a duty of disclosure.

ويجب الإفصاح عن تلك البيانات لمفتشي العمل عند طلبها.

That is the Arabic text of the closing clause of paragraph (9) of Article 9 of the Implementing Regulation. In our rendering, which is not an official translation, it requires the data to be disclosed to labour inspectors when they ask for it.

With that clause, the subject moves from a written policy to data that can be requested. What an establishment needs is not a statement of intent but a record it can produce when the question is put.

Discrimination in the employment of persons with disabilities in the Schedule of Violations and Penalties

The Schedule of Violations and Penalties (جدول المخالفات والعقوبات) for the Labor Law and its Implementing Regulation, issued by Ministerial Decision No. 112377 dated 21/8/1447H and published by the Ministry of Human Resources and Social Development, carries a separate row for discrimination in any form: on grounds of sex, disability, age and the like, in conditions of work, in pay between men and women for work of equal value, or any act that nullifies or weakens equal opportunity. The Schedule classifies it as a grave violation.

The fine in that row is graded by establishment size across three bands, so quoting one figure out of the three would present the penalty at a value it does not have for two of them. The fine is taken from the row with all three bands, in the Schedule itself, and no single amount is given for it in the definition.

How employment of persons with disabilities differs from work injury disability and from Saudization

Disability in Article 28 of the Labor Law is not the disability of the work injury provisions. The degrees of permanent total and partial disability (العجز) are assessed by the schedule of disability percentages (جدول دليل نسب العجز) in the Social Insurance Law (نظام التأمينات الاجتماعية), to which Article 136 of the Labor Law refers, and they serve to calculate compensation for a work injury. That is a different question, answered with a different instrument, and it has no connection with the quota in Article 28 of the Labor Law.

The quota in Article 28 of the Labor Law is not a localisation ratio. Saudization (السعودة) and Nitaqat (نطاقات) measure the nationality of the worker, within a programme set by a ministerial decision and run on a calculation of its own. Article 28 of the Labor Law measures something else, by a provision in the statute.

How a worker with a disability is counted within Nitaqat has separate provisions, and the definition draws no effect on an establishment’s band, upward or downward, from employment under Article 28 of the Labor Law. What a band controls is set out in our guide to what depends on an establishment’s Nitaqat band.

Does employment of persons with disabilities rest on the Labor Law alone?

The Labor Law and its Implementing Regulation do not cover everything that concerns the employment of persons with disabilities in the Kingdom, and there are bodies and support routes outside them. The definition stays with the Labor Law and its Implementing Regulation, and names no other body, programme or level of support unless a published source establishes it.

One route of that kind is published by the Human Resources Development Fund (صندوق تنمية الموارد البشرية). Its Employment Support product, the wage subsidy, includes an increment where the employee is a person with a disability. That increment depends on the employee’s data being registered on Jadarat, the national unified employment platform, and it is not earned on the fact of disability alone. The subsidy’s rate, cap and conditions are set by the Fund, and none of them is drawn from Article 28 of the Labor Law.

What employment of persons with disabilities leaves in the record

Three practical traces follow from all of this in an establishment’s books.

The first is the headcount against which the quota is measured. It decides whether Article 28 of the Labor Law reaches the establishment at all, and what 4% of its workforce amounts to.

The second is the data an inspector asks for. Paragraph (9) of Article 9 of the Implementing Regulation names its contents: the number of workers with disabilities, the nature of their work, their wages and the accommodation arrangements provided. A request is answered by producing that data, not by describing a policy.

The third is the accommodation arrangements. Because they have written references in the Saudi Building Code and in Annex 2, they can be documented in a way that shows they meet those references.

All three rest on records an establishment keeps already, the employee file among them, rather than on a record created for this purpose alone. None of the above replaces reading Article 28 of the Labor Law and Article 9 of the Implementing Regulation, with its annex, in their published source.

This is an explanation of the concept and of the statutory provisions cited, not legal advice.