The definition of the concept of ‘person with disability’ includes those who have been recognized permanent total disability (PTD), full permanent disability (FPD) or mayor invalidity (MI) pensions and pensioners of passive classes who have a retirement pension or retirement pension for permanent incapacity for service or futility. The latest regulatory changes and those expected would corroborate the possibility of these people being employed and, therefore, counting towards the 2% quota. 

Article 42 of Royal Legislative Decree 1/2023, of November 29, 2013, approving the Consolidated Text of the General Law on the Rights of Persons with Disabilities and their Social Inclusion establishes the obligation for public and private companies employing 50 or more people to reserve at least 2% of positions in favor of persons with disabilities. Article 4 of that regulation defines ‘persons with disabilities’ as “those who have physical, mental, intellectual or sensory impairments, foreseeably permanent, which, interacting with various barriers, may prevent their full and effective participation in society, on an equal basis with others”. It also establishes that, for the purposes of this, “persons with disabilities will be those who have been recognized as having a degree of disability equal to or greater than 33 percent”, being understood that they have a disability of that degree “Social Security pensioners who have been recognized a permanent disability pension in the degree of total, absolute or severe disability and passive class pensioners who have been recognized a retirement pension or retirement pension for permanent disability for service or uselessness”.

The Employment Act of February 28, 2023, amended Article 35 of the referred royal legislative decree to confirm that persons with the mentioned types of pensions, considered as persons with disabilities, also have the right to work.

This modification may seem paradoxical, since a person who has a recognized FDP or MI pension —which are granted due to the loss of physical capacity for work— is precisely limited to work.

Briefly, the limitations of PTD, FPD and MI are:

  • Persons with an PTD can work in a different profession from the one they were engaged in when the disability was recognized, provided that the functions do not coincide with those that gave rise to the disability.
  • The FPD disqualifies the person for any profession, but the exercise of activities that are compatible with the state of disability and that do not represent a change in work capacity for review purposes is allowed. This means that they can perform work that does not aggravate their condition and that is considered compatible with their state of health.
  • People with a MI, who need assistance for the most essential acts of life, can perform work activities that are compatible with their condition and do not affect the assessment of their ability to work.

In relation to these last two cases, the Supreme Court’s ruling of April 11, 2024 is very relevant. The Court has modified its most recent doctrine on the matter to return to its original approach, concluding now that the pensions for FPD and for MI are not compatible with work as an employee, and it is only possible to perform in these cases tasks or functions that are not those corresponding to a profession, but rather activities of an accessory, marginal, occasional or limited nature that, whether or not lucrative, do not give rise to their inclusion in the Social Security system.

However, this doctrinal change will probably be subject to further revision if the cases of MI, PTD or FPD are finally eliminated from Article 49.1.e) of the Workers’ Statute as cause for termination of the contract, as envisaged in the preliminary project of law approved by the Council of Ministers on May 21, 2024.

Consequently, as shown, the broad legal concept of ‘person with a disability’ and the trend towards protecting the right to work of persons with MI, PTD or FPD, with a view to achieving their social inclusion, may allow companies greater flexibility in complying with the 2% quota. But we will have to stay tuned for forthcoming legislative reforms and the consequent evolution of judicial doctrine to confirm this.

Alfonso Elías de Molíns Peña