The finding is indeed worrying: the unemployment rate of disabled workers is 19% (i.e. twice that of the active population) and the direct employment rate of these workers in private sector companies is only 3, 4% (against a target of 6% employment).
The new measures provided for are applicable from 1 January 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 the total workforce of its employees” (article L. 5212-2 of the Labor Code).
The so-called Avenir law thus maintains the employment rate of 6% of the company's workforce (a principle of reviewing this rate every 5 years is nevertheless planned).
The main innovation concerns companies with multiple establishments: for these companies, from 1 January 2020, the count of the threshold of 20 employees must be carried out at company level, and no longer establishment by establishment.
The stated objective of the public authorities is to increase the scope of entities concerned by OETH.
The calculation of the number of OETH beneficiaries to be employed by a company is very simple: number of company employees * 6%, rounded down to the nearest whole number (article D. 5212-2 of the Labor Code).
In addition, the calculation of the workforce must be carried out according to the new rules resulting from law n ° 2019-486 of May 22, 2019, known as the Pacte law, which will also be applicable from January 1, 2020.
The workforce of the company will thus be equal to the average number of people employed during each of the months 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 on January 1, 2020, the employer will only be subject to this employment obligation if it has reached or exceeded this threshold of 20 employees for five years. consecutive civil periods (article L. 130-1 of the Social Security Code).
Modalities for implementing OETH
As of January 1, 2020, employers subject to OETH can only meet their obligation in three ways:
– By direct employment of OETH beneficiaries “regardless of the duration and nature of their contract ” (article L. 5212-6 of the Labor Code) : all types of employment will thus be taken into account ( internships, temporary work, subsidized contracts, periods of work experience, etc.) (article D. 5212-3 of the Labor Code) ;
– By implementing an approved collective agreement to support the company's employment policy in favor of disabled workers;
– By paying an annual financial contribution.
With regard to this last option, the methods for calculating the annual contribution under OETH were set by decree no. 2019-523 of May 27, 2019.
Said contribution is equal to the product of the number of OETH beneficiaries missing to reach the 6% employment rate by one of the following lump sums:
– 400 times the hourly minimum wage for companies with 20 to less than 250 employees;
– 500 times the hourly minimum wage for companies with 250 to less than 750 employees;
– 600 times the hourly minimum wage for companies with 750 or more employees.
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 year compared to the previous year.
Thus, the increase in the contribution for a year N compared to a 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 OETH applicable to all companies
Under the terms of article L. 5212-1 of the Labor Code: “Mobilization in favor of the employment of disabled workers concerns all employers . As such, the latter declare the total number of job beneficiaries mentioned in Article L. 5212-13 that they employ, according to the terms set by decree. »
Thus, from 1 January 2020, all employers, including those not subject to 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 responsible for managing the development fund for professional integration (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 Labor Code).
