In the Official Gazette (Part I) no.1020 of 20 October 2022, Order no.1001/2022 was published approving the Instructions for the application of Article 78 paragraph (2) and (3) of Law no. 448/2006 on the protection and promotion of the rights of persons with disabilities.
We mention that the recently approved normative act replaced the instructions that were contained in the Order of the President of the National Authority for Persons with Disabilities no. 590/2008.
The purpose of the instructions is to regulate the provisions of article 78 paragraph (2) and (3) of Law 448/2006 in a uniform manner and to guide companies on the correct application of the law and their obligations under it.
We mention that the new instructions do not contain important changes compared to Order no.590/2008.
According to Law no.448/2006, public authorities and institutions, public or private legal entities, which have at least 50 employees, are obliged to employ people with disabilities in a percentage of at least 4% of the total number of employees.
For the application of the provisions of Article 78 paragraph (2) of the Law, the percentage of 4% of the total number of employees is determined as the arithmetic average resulting from the sum of the daily headcount of employees in that month, including weekly rest days, public holidays and other days when, according to legal provisions, no work is performed, divided by the total number of calendar days.
Article 78, paragraph (2) of Law 448/2006 states that public authorities and institutions, public or private legal persons, which have at least 50 employees, are obliged to employ persons with disabilities in a percentage of at least 4% of the total number of employees.
The daily headcount does not include employees on unpaid leave, those on strike, those on secondment abroad or those whose individual employment contracts are suspended.
For each weekly rest day or public holiday, the number of employees on the previous working day shall be taken into account, except for persons whose individual employment contract has ended on that day.
The resulting 4% is a number that has a two-digit decimal value.
In application of the provisions of article 78 paragraph (3) of the law, the 4% percentage resulting from article 4 is multiplied by the basic gross minimum wage per country guaranteed in payment or, as the case may be, by 50% of the gross minimum wage per country guaranteed in payment, established by Government decision in force in the month for which it is paid, depending on the option.
Article 78, paragraph (3) of Law 448/2006 states that:
Public authorities and institutions, as well as public or private legal entities, which do not employ disabled persons under the conditions provided for in paragraph (2), may opt for one of the following obligations:
a) to pay, on a monthly basis, to the state budget an amount representing the basic gross national minimum wage guaranteed in payment multiplied by the number of jobs in which they have not employed disabled persons;
b) to pay, monthly, to the state budget an amount representing the equivalent of at least 50% of the basic gross minimum wage per country guaranteed in payment multiplied by the number of jobs in which they have not employed persons with disabilities, and with the amount representing the difference up to the level of the amount provided for in letter a) to purchase, on a partnership basis, products and/or services made through the own activity of persons with disabilities employed in authorized protected units.
The amounts referred to in Article 78 paragraph (3) letter a) and b) represent payment obligations to the state budget, in accordance with the Nomenclature of payment obligations to the state budget, approved by Annex no.3 to the Order of the President of the National Tax Administration Agency no. 587/2016 for the approval of the model and content of the forms used for the declaration of taxes and duties with self-assessment or withholding tax, with subsequent amendments and additions, item 24: Payments from legal entities, for persons with disabilities not included.
According to the legal provisions, the purchase of products and/or services made through the own activity of disabled persons employed in authorized protected units is made on the basis of a partnership agreement, the model of which is provided in the annex to the Methodological Norms for the application of the provisions of Law no.448/2006 on the protection and promotion of the rights of disabled persons, approved by Government Decision no.268/2007, as amended and supplemented.
Payment for the purchase on a partnership basis of products and/or services made through the disabled person’s own activity may be partial.
If the economic operator purchases, in part, products and/or services made through the own activity of persons with disabilities employed in authorized sheltered units, on the basis of partnership, in an amount lower than the amount due to the state budget, it owes the state budget the difference.
If the economic operator purchases products and/or services through the own activity of disabled persons employed in authorized sheltered units, on the basis of partnership, in an amount higher than the amount due to the state budget in the respective month, the economic operator does not owe any amount to the state budget, and the difference is carried over to the following month, in order to reduce the payment obligation.
Legal basis:
-Order 1001/2022 on the approval of the Instructions for the application of Article 78 paragraph (2) and (3) of Law No 448/2006 on the protection and promotion of the rights of persons with disabilities;
-Law No 448/2006 on the protection and promotion of the rights of persons with disabilities^1) – Republished, with subsequent amendments and additions.