The Disabilities Act, passed in 2014, is expected to take effect next month but, there are provisions which will require employers to restructure workplace policies in order to not breach the legislation.

The Act, which will take effect on Februry 14, aims to safeguard and enhance the welfare of people with disabilities across Jamaica.

Senior attorney-at-law Anthony Williams, in a recent interview with the Jamaica Observer, said one of the critical sections of the Act is Section 29, which addresses discrimination against applicants and employees on account of their disability.

“The Act says an employer cannot or shall not discriminate against a person with a disability who is otherwise qualified for employment. If that person meets the criteria or even has a higher score than someone without a disability, you can’t say you’re going to give the other person the job because they don’t have a disability when the person with a disability has similar qualifications or even more qualifications. Once that happens the law is going to step in,” Williams said.

A person with a disability is defined as any person who has a long-term physical challenge, a mental challenge, an intellectual challenge or sensory impairment, which may hinder his full and effective participation in society on an equal basis with people.

The attorney pointed out that the Act deals with people already on the job and prohibits discrimination against people with a disability in terms of promotion, transfer, training, development and benefits.

He also noted that employers cannot dismiss an employee because of their disability, without reasonable cause, but said even this require a careful approach.

Further, Williams said Section 31 of the Act speaks about redeployment, where an employee has become disabled whether by virtue of their employment or otherwise, and is no longer capable of executing the task by his contract. In this instance, Williams said the employer should ensure they take reasonable steps to redeploy that employee by making adjustments or doing some retrofitting.

Moreover, Williams said the Section 4 of the Act speaks about contracts and employers must be careful not to introduce clauses that seek to circumvent the Act.

“It says a contract is going to be void if it is formulated or structured in such a way that it tries to contravene the Act. If you create a contract and put in clauses where the person with a disability cannot file a claim under the Act, you are saying look here, you can’t lodge any complaint, you can’t make any report against us and you are signing a contract where you waive your rights, the law says no, that contract will not work. Section 4 is saying the framers of contracts will have to think twice, because you have to be careful how you formulate contracts,” he said.

Williams said the Act also gives people with disabilities the right to lodge complaints to the Disabilities Council that can take up a matter within the parish courts.

Williams encouraged employers to try their very best to reserve a percentage of their total workforce for people with disabilities.

“This is my personal contribution. Maybe out of every 10 people you intend to employ, maybe two or three of those spots should go to people with a disability. Or you could say 20 per cent of workforce is for people with a disability. There are quite a few companies who do so. When you employ people with a disability it helps the companies because your employees will know how to interact with customers of the company with disabilities. So rather than employing someone to train your staff on dealing with people with a disability, they already understand,” he said.

Meanwhile, the attorney also outlined provisions with respect to new buildings and the renting or leasing of premises by people living with disabilities.

“In relation to new premises, when people are constructing new public or commercial premises, then the construction of the premises must be such that after the act has been enacted – after February 14, 2022 – any new building going up would have to ensure these buildings are readily accessible and usually by people with a disability. So we are talking about ramps, proper staircases, audible elevators — must be built in accordance with the National Building Code and designed in such a way as to make the common areas accessible to and usable by a person with a disability. So any common area that you have, must also take into consideration the use of a person with a disability.”

In relation to premises that are leased by the person with a disability, Williams said a person, who is authorised whether as the owner, agent or otherwise to sell, lease or otherwise dispose of premises shall not knowingly discriminate against a person with a disability or show prejudice to the person with disability.

With regards to penalties, Williams said, “Section 44 speaks to a investigation team being assaulted, obstructed or given false information. When the council is making investigation about breaches, if you knowingly give false or misleading information to the council or any authorised person the law says you’re going to be dealt with. You can be fined up to $1 million or six months in prison or both.”

In addition, Williams said Section 45 speaks to breaches by companies.

“Any director, manager or secretary, or similar officer who is instrumental in contravening the Act, can be fined $500,000 or six months in prison or face both,” he said.