The situation is indeed worrying: the unemployment rate for disabled workers is 19% (twice as high as that of the working population) and the direct employment rate of these workers in private sector companies is only 3.4% (compared to a target of 6% employment).
The new measures are applicable from January 1, 2020.
Obligation to employ disabled workers for all companies with more than 20 employees
Any company with at least twenty employees is subject to the obligation to employ disabled workers "in the minimum proportion of 6% of its total workforce" (Article L. 5212-2 of the Labour Code).
The so-called Future law thus maintains the employment rate of 6% of the company's workforce (a principle of reviewing this rate every 5 years is nevertheless provided for).
The main innovation concerns companies with multiple establishments: for these companies, from January 1, 2020, the calculation of the threshold of 20 employees must be carried out at the company level, and no longer establishment by establishment.
The stated objective of the public authorities is to increase the scope of entities covered by the OETH.
Calculating the number of OETH beneficiaries to be employed by a company is very simple: number of employees of the company * 6%, rounded down to the nearest whole number (article D. 5212-2 of the Labor Code).
Furthermore, the calculation of staff numbers must be carried out according to the new rules resulting from Law No. 2019-486 of May 22, 2019, known as the Pacte Law, which will also be applicable from January 1, 2020.
The company's workforce will thus be equal to the average number of people employed during each month of the previous calendar year (Article L. 130-1 of the Social Security Code).
Similarly, for companies that have not reached this threshold of 20 employees by January 1, 2020, the employer will only be subject to this employment obligation if they have reached or exceeded this threshold of 20 employees for five consecutive calendar years (Article L. 130-1 of the Social Security Code).
Implementation procedures for the OETH
From January 1, 2020, employers subject to the OETH (Obligation to Employ Disabled Workers) will only be able to fulfill their obligation in three ways:
– By directly employing beneficiaries of the OETH “regardless of the duration and nature of their contract ” (article L. 5212-6 of the Labour Code) : all types of employment will thus be taken into account (internships, temporary work, subsidized contracts, periods of professional placement, etc.) (article D. 5212-3 of the Labour Code) ;
– By implementing an approved collective agreement to support the company's employment policy in favor of disabled workers;
– Through the payment of an annual financial contribution.
With regard to this last option, the methods of calculating the annual contribution under the OETH were set by decree n°2019-523 of 27 May 2019.
This contribution is equal to the product of the number of OETH beneficiaries needed to reach the 6% employment rate multiplied by one of the following fixed amounts:
– 400 times the hourly minimum wage for companies with 20 to fewer than 250 employees;
– 500 times the hourly minimum wage for companies with 250 to fewer than 750 employees;
– 600 times the hourly minimum wage for companies with 750 employees or more.
Transitional provisions are planned for the years from 2020 to 2024: they will allow the employer to modulate any increase in the amount of the annual contribution due for a given year compared to the previous year.
Thus, the increase in the contribution for year N compared to year N-1 will be reduced by:
– 30% up to 10,000 euros;
– 50% above 10,000 euros and up to 100,000 euros;
– 70% above 100,000 euros.
The obligation to declare information relating to the OETH applies to all companies
According to Article L. 5212-1 of the French Labour Code: "The mobilization in favour of the employment of disabled workers concerns all employers . As such, the latter must declare the total number of job beneficiaries mentioned in Article L. 5212-13 whom they employ, according to procedures set by decree."
Thus, from January 1, 2020, all employers, including those not subject to the OETH, will have to declare the total number of OETH beneficiaries they employ, via the nominative social declaration (DSN) (article D 5212-4 of the Labor Code).
The annual declaration specific to the Association in charge of managing the fund for professional integration development (Agefiph) was abolished by the so-called Avenir law.
Companies with more than 20 employees will also have to, from 2021, make an annual declaration for the previous year as part of the DSN made in March (article D. 5212-8 of the Labour Code).
