On 12 June 2023, the leader of the Majority Party published the Persons with Disabilities Bill, 2023 with Parliament.
The Bill repeals the Persons with Disabilities Act, No.14 of 2003. The Act had a large focus on physical accessibility and employment of disabled persons but had certain shortcomings particularly on enforcement of rights.
The review was essential in order to take into account the provisions of the Constitution of Kenya 2010.
The 2023 Disabilities Bill
The Bill defines persons with disability as including persons with permanent physical, mental, intellectual development or sensory impairments including visual, hearing or albinism which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others
The Bill provides that employers shall not discriminate against a qualified person in recruitment, job application procedure, hiring, advancement and other terms, conditions and privileges.
Discriminating against persons with disabilities could mean asking job applicants or employees to answer disability-related questions, take a medical exam, or identify a disability.
The Bill therefore makes it unlawful to discriminate in all employment practices such as:
- Recruitment
- Leave
- Hiring
- Benefits
- Promotion
- Dismissal
- Training
- Job Assignment
- Layoff
- Pay
Note: The Bill does not interfere with an employers right to hire the best-qualified applicant nor does the Bill impose any affirmative action obligations.
The Bill simply prohibits an employer from discriminating against a qualified applicant or employee because of his or her disability.
Reservation & Annual Report
Employers are expected to reserve at least 5% of direct employment to persons with disability.
As part of compliance measures, employers are expected to submit an annual report on disability to the regulator/Council established under the Bill.
Reasonable Accomodation
The Bill provides for the concept of reasonable accommodations.
Reasonable accommodations are any changes/adjustments/modifications made to a process to make it fair for a person to participate fully in it based on a proven need.
The changes may mean applying specific measures to promotions, training etc in the employee life cycle.
It could mean adopting the following measures alone or in combination as categorised:
Technical measures
- provide a reserved parking spot.
- making the workplace accessible for wheelchair users by installing elevators or ramps.
- office furniture such as adjustable desks or ergonomic chairs.
- computer screen magnifiers.
- providing a reader (braille terminals) or interpreter for someone who is blind or hearing impaired.
Working arrangements
- flexible working hours or making a schedule change.
- granting teleworking.
- relocation or reassignment to a vacant position where reasonable accommodation is not possible in the current job.
- granting leave/breaks for disability-related traetment/medication or symptoms.
Training measures
- adjust the training material/aids to improve access, such as taking a test orally instead of writing.
- mobility training for blind employees.
Awareness‑raising measures
- DEI Training.
- Culture enhancements.
Dismissals
The Bill outlaws dismissal on the basis of disability.
The employer may:
- transfer the disabled employee to a different role without any loss of benefits or rank.
- deploy the employee to a different role or otherwise keep that employee on a supernumerary post until a suitable role is found.
Tax relief
The Bill provides for tax relief equivalent to 25% of taxable income of the disabled persons.
This is meant to act as an incentive to hire disabled employees.
General prohibition
The Bill prohibits the provision of goods, services or information without consideration being given for persons with disabilities.
This section is bound to impact product packaging, physical amenities, productions, online activities etc.
Next steps
The Bill will go through the normal processes but is expected to pass (subject to any modification arising out of public participation process).
The existing laws outlaw discrimination. It is important for employers to continue to continously review their proceeses to ensure continued #compliance.
Some suggested actions:
- Establish an understanding of the types of disabilities paying particular attention to those that may not have been prioritised in the past and therefore potentially habouring biases eg stammering, mental illness (aspergers, autism, bipolar disorders).
- Carefully review wording of job descriptions with the goal of identifying essential functions per role and clearly defining outputs of the role as opposed to specifying how the job is to be performed.
- In screening job applications, limit assessment decisions to job related areas particularly as regards essential functions and also review any reasonable accommodations that may need to be made to the roles to accomodate persons with disabilities.
- Avoid asking candidates whether they are disabled or not. Focus on candidates ability to perform the roles in question with or without accommodations. Standardise interview questions ensuring that similar questions are put to all candidates.
- Undertake medical examination after selection if these are required for the role. In so doing, do issue the medical examiner with the job description clearly outlining the essential functions of the role and the necessary skills for effective performance of it. To that end, review the place and role of psychometric tests to ensure compliance.
- Consider passing a Reasonable Accommodations policy to guide on the extent (actions and cost) and the procedure for making and effecting changes to accomodate disabled employees.
- Create and drive an inclusive working culture, promoting #diversity #inclusion and #equity across your organisation, so that a person can perform their job regardless of their disability.
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