Korean Labor Law Promoting Employment of Persons with Disabilities & Their Protection in the Workplace

I. Introduction
Persons with disabilities also have the right to pursue happiness with dignity and value as human beings, and are entitled to state protection of these rights (Articles 10 and 34 of the Constitution). In accordance with this principle, employers of at least a certain size are obliged to hire persons with disabilities, and laws prohibiting discrimination against them in employment are being, and have been, implemented. Accordingly, employers shall provide employment opportunities to such persons and shall not discriminate against any workers in personnel management, such as in hiring, promotion, transfer, education and training, etc., merely on the grounds that the workers have disabilities. When discrimination does exist, separate legal remedies are provided to ensure the effectiveness of their protection.
In spite of these strict legal systems, many employers choose to pay the employment levy instead of hiring persons with disabilities. In accordance with the urgent demand for greater awareness of the social acceptability of persons with disabilities, Education on Improving Workplace Awareness of Persons with Disabilities is a new statutory form of education established in 2018, with associated penalties for failures by employers to implement such education. If employers are unable to fulfill their obligation to hire persons with disabilities, companies know they only need to pay the employment levy instead. However, since related and legally-required education has been introduced, what follows is a detailed definition of persons with disabilities, the required employment promotion measures, prohibition against discrimination and remedy for infringed rights, and education on improving workplace awareness of persons with disabilities. We then comprehensively review the working standards for persons with disabilities.

II. Definition of & Obligation to Employ Persons with Disabilities
1. Definitions & Related Laws
Korea labor law related to persons with disabilities includes the Act on the Employment Promotion and Vocational Rehabilitation of Persons with Disabilities (hereinafter referred to as the "Employment Act for Persons with Disabilities") and the Act on the Prohibition of Discrimination against the Disabled (hereinafter referred to as the "Act Against Discrimination of Persons with Disabilities") . The purpose of the Employment Act for Persons with Disabilities is to contribute to the employability of such persons so that they may live as regular members of society through work suited to their abilities (Article 1). Here, the term “person with disabilities” refers to someone who has had his/her long-term working life substantially restricted due to a physical or mental disability that corresponds to the standards prescribed by Presidential Decree. There are 15 types of disability specified in Article 2 of the Enforcement Ordinance of the Act on Welfare for Persons with Disabilities: ① physical disabilities, ② brain lesions, ③ blindness, ④ deafness, ⑤ language disability, ⑥ mental retardation, ⑦ developmental disability, ⑧ mental disorder, ⑨ kidney disorder, ⑩ cardiac disorder, ⑪ respiratory disorder, ⑫ liver disorder, ⑬ facial disorder, ⑭ intestinal fistula ⑮ epilepsy with other disabilities.
The purpose of this Act Against Discrimination of Persons with Disabilities is to prohibit discrimination on the basis of disability in all aspects of life, and to effectively safeguard the rights and interests of individuals discriminated against on the grounds of the disability, thus enabling them to fully participate in society and establishing their right to equality which will ensure their human dignity and sense of value (Article 1). This law stipulates the concept and criteria for discrimination against persons with disabilities, and also provides a framework for judging discrimination based not only on employment but also access to and use of education, goods and services, judicial and administrative procedures, services and political rights, motherhood and fatherhood, family, home, welfare facilities, and right to health. It prohibits discrimination and stipulates the right to relief for victims of discrimination through the National Human Rights Commission Act (NHRCA). In Article 9, the Disability Discrimination Act provides that "the prohibition of discrimination on grounds of disability and the right to relief under the Act shall be in accordance with the provisions of the NHRCA, except as provided in this Act."

2. Obligation to Employ Those with Disabilities
An employer who employs 50 or more persons at any time shall be deemed to be obligated to employ persons with disabilities to the rate prescribed by the President (hereinafter referred to as "the mandatory employment rate") up to 5 percent of the total number of employees (Article 28 of the Employment Act for Persons with Disabilities). The mandatory employment rate from 2019 is 31/1000 (Article 25 of the Enforcement Decree). Here, "ordinary employment" refers to an employee who has 16 or more working days per month regardless of the type of labor contract. Specifically, the number of employees hired for 16 days or more per month is calculated by dividing the number of months of operation (minus month(s) with less than 16 days of operation) for one year (Article 24 of the Enforcement Decree).
The Minister of Employment and Labor may pay an employment incentive calculated in proportion to the number of persons with disabilities who have been hired exceeding the standard employment rate, including employers who are not subject to employment obligations. The payment unit price shall be within the range of the minimum wage converted on a monthly basis, and shall be preferentially set for those with severe disabilities and women with disabilities (Article 30 of the Employment Act for Persons with Disabilities).

3. Employment Levy on Companies Failing to Employ Persons with Disabilities
Employers who do not hire persons with disabilities, or do not meet the mandatory employment rate, must pay an annual employment levy to the Minister of Employment and Labor. However, employers with fewer than 100 permanent employees are exempted from this obligation. Employers subject to the obligation to employ persons with disabilities shall declare in writing their number of permanent employees per month, their number of employees with disabilities and the amount of levy (if any) paid each year by January 31 of the following year, and shall pay the levy for that year. The Employment Levy for Persons with Disabilities is the annual sum of the total number of persons with disabilities to be hired under the mandatory employment rate minus the number of persons with disabilities regularly employed each month multiplied by the burden base amount (Article 33 of the Employment Act for Persons with Disabilities).




III. Discrimination Against Those with Disabilities
1. Criteria for determining discrimination
Direct discrimination is where (1) those with disabilities are treated unfavorably, due to their disability, through restriction, exclusion, separation, or denial without justifiable reason (Article 4 (1) of the Act Against Discrimination of Persons with Disabilities).
Indirect discrimination refers to (2) when persons with disabilities who are not adversely affected by restrictions, exclusion, separation, or rejection in a formal way but still undergo adverse consequences for their disability by applying criteria to them, without justifiable cause, that do not consider their specific situation; (3) where reasonable accommodation is not provided to persons with disabilities without just cause. H