Content of the article.
Since COVID-19 cases, hereinafter coronavirus, were confirmed in countries around the world, the resulting health crisis has affected vulnerable populations in the region, including persons with disabilities. One indication of this is that Peru became one of the 10 countries with the highest number of COVID-19 infections worldwide[1]. Added to this are other factors, including the loss of many jobs held by workers with disabilities as a consequence of the pandemic. This may constitute a violation of various international instruments and national laws, including the Protocol of San Salvador, the Convention on the Rights of Persons with Disabilities (CRPD), Law No. 29973 – General Law on Persons with Disabilities, and Legislative Decree No. 1468 (which establishes prevention and protection measures for persons with disabilities). In addition, specialised organisations such as the International Labour Organization (hereinafter, ILO) point out that persons with disabilities are seriously affected in the labour market due to patterns of discrimination that create barriers to access to work, resulting in high unemployment rates that harm this population.[2].
In the context of the COVID-19 pandemic, persons with disabilities in Peru must face various barriers to transport, education, healthcare, employment and other areas, with effects on both their own finances and those of their families. These difficulties have been intensified by the pandemic, in many cases worsening situations of poverty. Employment barriers are particularly important, as reflected in complaints submitted by this group alleging violations of the right to work when employment relationships are terminated without adequate justification.
With regard to the international instruments that provide social protection for persons with disabilities, particular account should be taken of the Convention on the Rights of Persons with Disabilities (CRPD) and the Protocol of San Salvador of the Organization of American States (OAS).
It should be noted that the Convention on the Rights of Persons with Disabilities (CRPD) consolidated the social model of disability within international human-rights law. Thus, Article 27[3] of the Convention requires States to fulfil various duties aimed at including persons with disabilities in the labour market. Nevertheless, Peru lacks an efficient system that encourages the hiring of persons with disabilities, who remain excluded in many situations. Through the Convention, States Parties are expected to respect the right of persons with disabilities to access systems that promote and foster employment in both the public and private sectors free from prejudice and discrimination; States must therefore implement effective policies consistent with that aim.
Accordingly, in order to fulfil international obligations and act in compliance with and respect for the CRPD, a series of public policies have been implemented. One achievement is the quota system in favour of this group, reflected in Article 49 of Law No. 29973, which establishes that public entities must employ persons with disabilities in a proportion of no less than 5% of their total workforce.. The law provides that the Ministry of Labour and Employment Promotion is responsible for oversight in the private sector, while the National Civil Service Authority, in coordination with the National Council for the Integration of Persons with Disabilities (CONADIS), is responsible in the public sector.
Despite these efforts, both the public and private sectors continue to commit violations of the rights of persons with disabilities. One clear example is the arbitrary dismissal of persons with disabilities, following the complaint filed by Ms Amparo Montoya[4], a person with a motor disability who had signed an Administrative Services Contract (CAS) to work in the Document Administration and Archives Unit of the Municipality of Villa El Salvador. On 5 May of that year, she reportedly stated on Radio Capital that she had been notified through a document that her duties at that public entity were being terminated. The complainant said that she had worked for the public body for nine years and was also the mother of two children. After receiving the dismissal notice, she went to the municipality and approached the human-resources area of the Municipality of Villa El Salvador to ask why, but she said that no reasons for the dismissal were adequately explained.
In response, the Ombudsman’s Office expressed concern about possible violations, including unjustified and arbitrary dismissal, breach of the employment quota for persons with disabilities, restrictions on access to employment-related rights (such as social security and pension rights), and alleged workplace discrimination on the basis of disability.[5]In this regard, the institution highlighted two issues: the absence of a disability perspective in the implementation and execution of public policies by the Peruvian State and in decisions by local governments, in light of Legislative Decree No. 1468, which establishes prevention and protection provisions for persons with disabilities during the emergency, including measures to facilitate access to remote work or paid leave for persons with disabilities and their family members when they support a person with a disability diagnosed with COVID-19 or belonging to a risk group.
Malena Pineda, head of the Ombudsman’s Office Programme for the Defence and Promotion of Persons with Disabilities, also reported that following the complaint the Office had formally contacted the municipality regarding the alleged violations: unjustified and arbitrary dismissal and presumed workplace discrimination on the basis of disability.
The Ombudsman’s Office makes numerous efforts to provide protection and find solutions to employment-dismissal problems affecting persons with disabilities. However, this is not sufficient. Many of its actions depend on the quality of inspections by the Ministry of Labour to monitor and supervise protection of and compliance with the employment quota for persons with disabilities in accordance with international instruments. Horizontal coordination among State bodies and with the international community is also necessary.
However, labour inclusion of persons with disabilities goes beyond an employment quota, as Claudia Tecglen, president of the Convives con Discapacidad Association, states. For Tecglen, the main route to labour inclusion is to “facilitate access to higher education and quality employment for persons with disabilities; jobs that allow them to live with dignity, rejecting the promotion of jobs ‘simply to meet quotas’.” In her words, “both educational institutions and companies must encourage training and take into account the needs of employees with disabilities in order to develop their abilities and help them achieve excellence”.[6].
REFERENCES:
[1] Diario Gestión: https://gestion.pe/mundo/peru-ingresa-al-grupo-de-los-10-paises-con-mas-casos-de-contagios-por-covid-19-en-el-mundo-covid-19-martin-vizcarra-nndc-noticia/ (last accessed on 12 June 2020).
[2] Instituto de Democracia y Derechos Humanos. https://idehpucp.pucp.edu.pe/opinion/la-cuota-de-empleo-para-las-personas-con-discapacidad-en-el-peru/. (Last accessed on 12 June 2020)
[3] Article 27: Work and employment
States Parties recognize the right of persons with disabilities to work, on an equal basis with others; this includes the right to the opportunity to gain a living through work freely chosen or accepted in a labour market and work environment that are open, inclusive and accessible to persons with disabilities. States Parties shall safeguard and promote the realization of the right to work, including for those who acquire a disability during the course of employment, by taking appropriate steps, including through legislation, among them:
[4] Radio Capital: Available at: https://capital.pe/actualidad/defensoria-del-pueblo-exige-a-municipios-de-magdalena-y-ves-no-despedir-a-trabajadores-con-discapacidad-noticia-1271515. (last accessed on 12 June 2020)
[5] Defensoría del Pueblo. https://www.defensoria.gob.pe/la-defensoria-del-pueblo-alerta-sobre-despidos-a-personas-con-discapacidad/ (last accessed on 12 June 2020).
[6] Diario de España. http://www.teinteresa.es/espana/CLAUDIA-TECGLEN-REFERENCIA-ESPANOLA-ESPASTICIDAD_0_1454854673.html (last accessed on 12 June 2020)
