Medical reservation = discrimination against persons with disabilities (long read)

The medical reservation rules and their implementation:  how well do they fit with the prohibition of discrimination against persons with disabilities and the current HR drive for diversity and inclusion [1]?

The pre-recruitment medical: excluding those with disabilities?

Every month the Medical Service examines hundreds of candidates [2] to ensure that potential new recruits are physically fit to perform their duties [3]. The Medical Service can issue an opinion recommending that the Appointing Authority adopt the so-called medical reservation [4] where it finds that a candidate has a health or medical issue. This means that a newly recruited colleague, for a period of 5 years from the date of entry into service, is not granted the guaranteed benefits in respect of invalidity or death resulting from the health or medical issue named by the Medical Service.

The colleagues affected by the medical reservation are, however, entitled to all the other social security benefits of the Commission and all their medical expenses, including those relating to the health issue named in the medical reservation, are reimbursed as they are for everyone else within the limits laid down in the Staff Regulations (SR) (e.g. mostly 85% reimbursement).

In many cases, the person affected by the medical reservation might be a person with disability [5].

What are the chances of that?

According to the World Health Organization and the World Bank World report on disability 2011 (p.44), there are around 785 million (15.6% , World Health Survey) to 975 million (19.4%, Global Burden of Disease) people living with disability (based on 2010 population estimates).

According to the Europe 2020 data and people with disabilities prepared for the European Disability Expertise (Table 1: Disability Prevalence 2018), approximately one quarter (24.7%) of the EU-27 population has some form of disability (25%  of the EU-28 population).

According to the Eurostat Disability statistics (2. Functional and activity limitations), about a quarter of the EU population experienced long-standing activity limitations due to health problems in 2019.

What is a ‘person with disability’?

‘Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.’ (Article 1 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD))

The UNCRPD does not, however, provide for any international or national ‘recognition of disability’ card whatsoever, for general use, or more particularly as a prerequisite for the recognition of the legal status of a ‘person with disability’[6].

In short, you do not need a medical certificate or a disability card to qualify as a ‘person with disability’. Disability is a social, not a medical, phenomenon.

‘A person has a disability if [that person] has a long-term physical, mental, intellectual or sensory impairment which, in interaction with various barriers, may hinder [that person’s] full and effective participation in society on an equal basis with others’ (Article 1d(4), SR)

So, if the health issue mentioned by the Medical Service in its opinion recommending deferral of medical cover is a long-term physical, mental, intellectual or sensory impairment, which in interaction with various barriers may hinder the full and effective participation in society on an equal basis with others, then the person affected by the medical reservation is a person with disability.

Violation of the right to equal treatment and non-discrimination on the grounds of disability

Persons with disabilities have the right to equal treatment and non-discrimination on the grounds of disability (UNCRPD, the Charter of Fundamental Rights of the European Union (CFREU), and Council Directive 2000/78/EC Employment Equality Directive).

The EU signed the UNCRPD in March 2007, ratified it in December 2010 and it entered into force in the EU on 22 January 2011, which means that all legislation, policies and programmes at European level must comply with its provisions.

Is the Commission waiting on something happening in order to address the discrepancies? No, unfortunately not, the EU is competent to act: ‘…the Community [EU] declares that it has power to deal with regulating the recruitment, conditions of service, remuneration, training etc. of non-elected officials under the Staff Regulations and the implementing rules to those Regulations’ (Council Decision 2010/48/EC, Annex II, paragraph 1).

In September 2015, the UN Committee on the Rights of Persons with Disabilities recommended ‘that the EU revise its Joint Sickness and Insurance Scheme [JSIS] so as to comprehensively cover disability-related health needs in a manner which is compliant with the Convention’ (Concluding observations on the initial report of the EU, CRPD/C/EU/CO/1, paragraph 87).

The UNCRPD: discrimination has many forms

Article 2 of the UNCRPD sets out ‘discrimination on the basis of disability’ as ‘any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation.’

Moreover, Article 25(e) of UNCRPD explicitly prohibits discrimination against persons with disabilities in the provision of health insurance.

Furthermore, Article 27 of UNCRPD prohibits ‘discrimination on the basis of disability with regard to all matters concerning all forms of employment, including conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions.’

CFREU, the Employment Equality Directive, the European Court of Justice and the Data Protection Supervisor on discrimination

According to Article 21 of the CFREU, ‘any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.’

Article 2, read in conjunction with Article 1, of the Employment Equality Directive makes clear that the ‘principle of equal treatment’ means that there shall be no direct or indirect discrimination whatsoever, including on the grounds of disability.

Article 2 of the Employment Equality Directive further stipulates that ‘direct discrimination’ shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation.

Whilst the Employment Equality Directive prohibits discrimination on the grounds of disability, it does not set out what it accepts as ‘disability’.

However, the Court in its judgment of 11 April 2013 stated that ‘if a curable or incurable illness entails a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one, such an illness can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78 [Employment Equality Directive]’ (Joined Cases C-335/11 and C-337/11, paragraph 41).

Furthermore, as regards the pre-recruitment medical examination, the European Data Protection Supervisor (EDPS) Guidelines concerning the processing of health data in the workplace by Community institutions and bodies of September 2009 explicitly refer to the risk of discrimination based on health conditions (p.9):

‘To minimize the risks of discrimination based on health conditions, family situation, or lifestyle, the EDPS recommends that during the pre-recruitment medical check-up no data should be collected solely for purposes of prevention. The principles of adequacy, relevance, and proportionality [principle that an authority must not take any action that exceeds that necessary to carry out its assigned tasks] must be ensured with respect to all categories of data collected at all stages of the procedure for the pre-recruitment medical check-ups.’

Therefore, the decision of the AACCE, following the recommendation of the Medical Service, to apply a medical reservation in the particular case of a person with disability, constitutes, first, discrimination in the provision of health insurance, because the said decision limits the health insurance coverage of the person concerned, and also, second, discrimination in the field of employment, including conditions of recruitment, hiring and employment, because the person concerned is treated less favourably than another person, who is free of disability, would be treated in the same situation.

Violation of the right to social security and the right to social and medical assistance

The decision to apply a medical reservation might deprive a new recruit of an adequate level of social protection, in breach of the general principles underlying, first, Articles 12 and 13 of the European Social Charter (ESC), concerning the right to social security and the right to social and medical assistance, and also, second, Articles 34 and 35 of the CFREU, concerning the right of access to social security benefits, notably in the case of illness, and healthcare, respectively.

Although the EU has not fully adopted (‘acceded to’) the ESC, it is mentioned in the preamble to the Treaty on European Union (TEU), and also in Article 151 of the Treaty on the Functioning of the European Union (TFEU), and forms part of the international instruments which should guide the institutions in the application and interpretation of the provisions of the SR and of the Conditions of Employment of Other Servants of the European Communities [EU] (CEOS), especially those which might deprive a worker of fundamental social protection by means of a simple option left to the discretion of the administration.

Furthermore, according to Article 34 of the CFREU, ‘the Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices. Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices.’

Under Article 35 of the CFREU, ‘everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities.’

Therefore, the decision to apply a medical reservation is also in breach of the right of access to social security benefits, social services and healthcare protected by the CFREU and the ESC.

Violation of the right to freedom of movement for workers

Let us take a closer look at the joined cases in which the Court annulled the Commission’s decision to defer the applicant’s medical cover based on Article 100 CEOS.

As pointed out by the Court, it is clear from the wording of Article 100 CEOS that that article provides an option for the contracting authority to defer medical cover, when the member of staff becomes affiliated to the Community [EU] social security scheme, where the existence of sickness or invalidity affecting that member of staff is revealed during the pre-employment medical examination (paragraph 112, Joined Cases F‑69/07 and F‑60/08).

As emphasised by the Court, it is necessary, for the interpretation of Article 100 CEOS, to comply with the requirements flowing, in the sphere of social security in particular, from the principle of freedom of movement for workers guaranteed by Article 45 TFEU, which is part of the foundations of the European Union, and which the Commission must take into account when interpreting the rules of the SR or CEOS (paragraph 122).

In particular, according to settled case-law, the objective of Article 45 TFEU would not be attained if, as a result of exercising their right to freedom of movement, a worker were to lose social security advantages granted by the legislation of a Member State; that might dissuade Community workers from exercising their right to freedom of movement and would therefore constitute an obstacle to that freedom (Case C‑12/93 Drake [1994] ECR I‑4337, paragraph 22, and Case C‑443/93 Vougioukas [1995] ECR I‑4033, paragraph 39).

As pointed out by the Court, in fact, the application of Article 100 CEOS, in the circumstances of the present case, penalises the applicant and is therefore such as to produce a deterrent effect of this kind, since, by agreeing to remain in the service of the defendant institution under a new contract as a member of the contract staff, she loses, for 5 years, owing to the deferral of medical cover, the advantage of the invalidity benefits guaranteed to her by the previously applicable Belgian legislation, without however acquiring a right to Community benefits for invalidity and death arising from the sickness revealed during her pre-employment medical examination (paragraph 131).

The Court concluded that it was for the contracting authority not to exercise, against the applicant, the option provided for in Article 100 CEOS. Consequently, the Commission was not entitled to defer the applicants’ medical cover on the basis of Article 100 CEOS. Therefore, the Commission’s decision to defer the applicant’s medical cover was annulled (paragraphs 147-149).

Recommendations

In the light of the critical analysis given here, we urge the Commission, as a temporary solution, to not exercise the option to defer the medical cover with regard to officials, temporary agents and contract agents, especially in the case of persons with disabilities.

We ask the Commission, as a permanent solution, to propose during the next revision of the Staff Regulations, to delete the abovementioned provisions.

Moreover, we call for the Commission to further raise the staff awareness of the specific issues faced by the persons with disabilities by way of publishing and distributing a Disability Etiquette Guide similar to the one adopted by the European Parliament in 2015 (Equality and Diversity Unit, DG Personnel).

These recommendations are fully in line with the Union of Equality: Strategy for the Rights of Persons with Disabilities 2021-2030 presented by the Commission on 3 March 2021.

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[1] We await the published results of the March 2021 HR D&I survey which included a section on Disability and special needs.

[2] For example, in 2020 the Commission recruited 1103 officials and temporary agents, and 1105 contract agents, which means that approximately 2200 pre-recruitment medical examinations were performed by the Medical Service last year.

[3] Article 28(e) and Article 33 of the Staff Regulations

[4]  Note that the Appointing Authority/Authority Authorised to Conclude Contracts of Employment (AACCE) may decide to adopt a medical reservation, which means that the AACCE has the option, but not the obligation, to follow the recommendation of the Medical Service. Legal framework: the  medical reservation provisions

[5] Note that many people might live with limitations without considering themselves disabled, particularly where there is no perceived benefit.

[6] The sole purpose of European and national disability cards is to facilitate the access of persons with disabilities to social and other services provided by the national authorities of Member States. The March 2021 HR D&I survey used the UN definition of disability, but also mentioned ‘an entitlement as person with a disability’ i.e. an official Medical Service assessment.

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