The Supreme Court of Justice, Labor Chamber in its unifying function of jurisprudence, marked a differential milestone in the interpretation of reinforced labor stability of people with disabilities in accordance with article 26 of law 361 of 1997, departing from the previous stability criteria. reinforced labor, which provided:
- The worker will have at least one physical, mental or sensory limitation of a moderate nature, that is, the person has a loss of capacity equal to or greater than 15% according to the provisions of article 7 Decree 2463 of 2001.
- The worker will have a severe physical, mental or sensory limitation, with a loss of work capacity greater than 25% and less than 50%.
- The worker will have a profound physical, mental or sensory limitation, with a loss of work capacity greater than 50%.
However, the new position of the Supreme Court of labor justice regarding the concept of disability changes because it is a concept in constant evolution in domestic law and that has been integrated into the constitutionality block with the convention on the rights of people with disabilities. disability approved by law 1346 of 2009 and came into force in June 2011 and the statutory law law 1618 of 2013.
The CSJ stated that in addition to the technical-scientific criteria, a descriptive technical qualification should be included and if there is no qualification, the evidentiary freedom that is intuited from the state of health that is classified as a notorious, evident and perceptible fact is inferred.
The previous legal instruments of the Convention on the Rights of Persons with Disabilities and its statutory law have an impact on the workplace and, therefore, are considered a guiding criterion to prevent discriminatory dismissals of workers with disabilities in terms of the deficiency. physical, mental, mental or sensory medium and long term.
The CSJ indicates that for enhanced job stability, the following elements are met.
- Physical, mental, mental or sensory deficiency in the medium and long term
- The existence of barriers in the worker’s environment that limit the effective exercise of their place, on equal terms with others.
- Disability is understood as medium and long term
- The employer is aware of the disability
Regarding the existence of barriers in the work environment, the CSJ catalogs the following:
- A) Attitudinal:Those behaviors, words, phrases, feelings, preconceptions, stigmas, that prevent or hinder the equal access of people with and/or in situations of disabilities to spaces, objects, services and in general to the possibilities offered by the society.
- B) Communicative: Those obstacles that prevent or hinder access to information, consultation, knowledge and, in general, the development under equal conditions of the communication process of people with disabilities through any means or mode of communication, including difficulties in the communicative interaction of people.
- C) Physics: Those material, tangible or constructed obstacles that prevent or hinder the access and use of spaces, objects and services of a public and private nature, under conditions of equality by people with disabilities.
Labor guarantees of the worker in the barriers and obligations of the employer:In these events, the employer must make the reasonable and necessary adjustments to ensure the integration of regular and free work under equal conditions. In this regard, the CSJ expresses that although it is not an exhaustive list, the employer must adopt all the necessary measures to mitigate and eliminate barriers in the work environment for workers with disabilities.
It is highlighted that the adjustments correspond to objective criteria and are not those corresponding to the imposition of disproportionate burdens by the employer and in the event that this is not possible the worker must be informed. In all events they will be reasonable adjustments that facilitate the labor integration of the worker in good condition. of disability.
The court with its new position remembers that disability is not a numerical factor and the minimum criteria to evaluate disability and the application of enhanced job stability are basically:
- Human factor assessment:The existence of a physical, mental, intellectual or sensory deficiency, a medium or long-term limitation or disability
- Contextual factor assessment: The analysis of the position, its functions, requirements, demands, the specific work and attitudinal environment
- Final assessment: The contrast and interaction between these two human factors and context will give a result of interaction of the deficiency or limitation with the work environment.
Unifying criteria for non-application of reinforced job stability within the framework of the disability rights convention.
Reinforced job stability would not apply to workers: 1) momentary health contingencies, 2) temporary pathologies, short-term illnesses, 3) health conditions per se are not always synonymous with disability.
Source:
- CSJ SL- 1152 of 2013
