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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
A qualified employee with a disability is entitled to the same terms, compensation, privileges, benefits, incentives, and allowances as an able-bodied employee. Furthermore, individuals with disabilities cannot be subjected to discrimination in any aspect of employment, including recruitment, hiring, continuation of employment, career advancement, and ensuring safe and healthy working conditions. (Implementing Rules and Regulations of Republic Act No. 10524)
The employment status of Persons with Disability (PWD) is a crucial factor to their inclusion and participation in society. In the Philippines, as in many other countries, ensuring equal opportunities for PWDs in the workforce is a significant challenge.
Thus, the law says:
No entity, whether public or private, shall discriminate against a qualified disabled person by reason of disability in regard to job application procedures, the hiring, promotion, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. (Section 32, Republic Act No. 7277)
Who is a Qualified Person with Disability?
A qualified person with disability refers to an individual with disability who, with reasonable accommodations, can perform the essential functions of the employment position that such an individual holds or desires. However, consideration shall be given to the employer’s requirement as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing an applicant for the job, this description shall be considered evidence of the essential functions of the job. (Rule III, Section 5(f), Implementing Rules and Regulations of RA 10524)
Persons with Disability and their Right to an Equal Employment Opportunity
Opportunity for suitable employment shall be open to all qualified PWDs. Efforts shall be exerted to provide qualified PWDs equal opportunity in the selection process based on qualification standards prescribed for an appointment to a position in government and requirements set by the employers in private corporations. No PWD shall be denied access to opportunities for suitable employment.
A qualified employee with disability shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as an employed able-bodied person.
A person with disability shall not be discriminated on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement, and safe and healthy working conditions. (Rule IV, Section 6, Implementing Rules and Regulations of RA 10524)
Disabled Persons vis-à-vis Regular Employment
Taking the case of Marites Bernardo, et al. vs. National Labor Relations Commission and Far East Bank and Trust Company (G.R. No. 122917, July 12, 1999):
Respondent bank entered into “Employment Contract for Handicapped Workers” with a total of 56 handicapped workers and renewed the contracts of 37 of them. In fact, two of them worked from 1988 to 1993. They were employed as money sorters and counters. Verily, the renewal of the contracts of the handicapped workers and the hiring of others lead to the conclusion that their tasks were beneficial and necessary to the bank. More important, these facts show that they were qualified to perform the responsibilities of their positions. In other words, their disability did not render them unqualified or unfit for the tasks assigned to them.
In this light, the Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given the same terms and conditions of employment as a qualified able-bodied person.
Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Article 280 of the Labor Code, which provides:
Art. 280. Regular and Casual Employment. — The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That, any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered as regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.
The test of whether an employee is regular was laid down in De Leon v. NLRC, in which this Court held:
‘The primary standard, therefore, of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also if the employee has been performing the job for at least one year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity, and while such activity exist.’
Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of respondent bank. With the exception of sixteen of them, petitioners performed these tasks for more than six months. Thus, the following twenty-seven petitioners should be deemed regular employees.
In light of the foregoing, in relation to The Magna Carta for Disabled Persons, qualified disabled persons are granted the same terms and conditions of employment as qualified able-bodied employees. Therefore, they are also entitled to the regularity of their employment just like qualified able-bodied employees. Once they have attained the status of regular workers, they should be accorded all the benefits granted by law, notwithstanding written or verbal contracts to the contrary.
Read also: Hiring of Persons with Disability
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding taxation and taxpayer’s remedies, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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