Article 38, Paragraph 3 of the Law for Protecting the Rights and Interests of the Mentally or Physically Disabled stipulates the method for calculating the number of the mentally or physically handicapped employees that shall be hired by all levels of government agencies, public and private schools, organizations and public and private enterprises. With respect to this requirement, the Ministry of Labor issued the Lao-Dong-Fa-Te-1050507112 Circular of October 13, 2016 (hereinafter, the “Circular”), holding that if there is any factual proof that a retired mentally or physically handicapped individual is hired, such individual may be included in the number of mentally or physically handicapped employees as hired. The Tai-81-Nei-She-8183057 Circular of August 29, 1992, previously issued by the Ministry of the Interior, is no longer applicable beginning with October 13, 2016.
The Circular first points out that the provision that “the total number of employees shall be calculated by the number of employees covered by civil servant insurance or labor insurance on the first day of each month” determines “employment.” In addition to “facts of employment,” the fact that “insurance coverage on the first day of each month” is also required. Such provision was previously found in Article 17 of the Enforcement Rules of the Law for the Welfare of the Disabled of 1991 and was amended and included in Article 12 of the Enforcement Rules of the Law for Protecting the Rights and Interests of the Mentally or Physically Handicapped. In 2007, the Law for Protecting the Rights and Interests of the Mentally or Physically Handicapped was amended where the Enforcement Rules (on the level of regulation and directive) were moved to Article 38, Paragraph 3 of the Law for Protecting the Rights and Interests of the Mentally or Physically Handicapped (on the level of law).
In addition, according to the Circular, the interpretation that an obligated organization (agency) which fails to include a mentally or physically handicapped employee on the first day of the month may include such employee in the total number of the employees and the number of the mentally or physically handicapped employees only applies to the mentally or physically handicapped above the age of 60 who do not obtain labor insurance since they have received old-age benefits. In view of an aging population, low birth rate and year-over-year reduction of labor force, although such employees are not allowed to obtain labor insurance pursuant to law, still they may be included in the calculation of the number of mentally or physically handicapped employees as hired by an obligated agency (organization) if the employment is factually proven so as to encourage them to work after retirement.