The Project of Law (PL) 2687/2022, which recognizes "type 1 diabetes" as a disability for all legal purposes, was approved in its final version and is about to be sanctioned to become law. Although this approval represents a significant and inclusive advancement, the text of the PL does not specify, in practice, how people with type 1 diabetes will be classified, leaving the Executive Branch to create the necessary instruments for evaluating this new disability.
According to the Statute for the Disabled (Law No. 13.146/2015), a person with a disability is considered someone who has a long-term impairment of physical, mental, intellectual, or sensory nature, which, in interaction with one or more barriers, may obstruct their full and effective participation in society on equal terms with others.
In this context, type 1 diabetes is a chronic autoimmune condition that affects the pancreas' ability to produce insulin, a hormone essential for regulating blood glucose levels. In short, diabetes is characterized by permanently high blood sugar levels (hyperglycemia) without sufficient insulin production, meaning the body cannot process glucose adequately, potentially leading to serious and often irreversible health complications.
The evaluation to determine any disability, according to art. 2, § 1, of the Statute for the Disabled, is biopsychosocial and must be performed by a multidisciplinary and interdisciplinary team. That is, the evaluation must consider: (i) impairments in body functions and structures; (ii) socio-environmental, psychological, and personal factors; (iii) limitations in performing activities; and (iv) restrictions on participation.
Decree No. 3,298/1999 defines disability as “any loss or abnormality of a psychological, physiological, or anatomical function or structure that causes incapacity for performing an activity, within the normal standard for human beings; permanent disability – one that has occurred or stabilized over a period of time sufficient to prevent recovery or show no likelihood of recovery, despite new treatments; and incapacity – a significant reduction in the capacity for social integration, requiring equipment, adaptations, means, or special resources for the person with a disability to receive or transmit information necessary for their well-being and performance of function or activity.”
Therefore, in general, with the sanction of the PL, diabetes, when accompanied by a medical report, will be considered a disability for all legal purposes, including its holders in social and mandatory quotas, after specific regulation.
In line with the above, for a person to be classified under the legal quota, they must prove the condition of disability according to the requirements established by law. Rehabilitated persons, on the other hand, are those who have undergone official programs for the recovery of labor activity lost due to unfortunate events, and must certify this condition through official public documents issued by the INSS.
It is emphasized that the quotas mentioned above refer to the obligation for companies with more than 100 employees to reserve a percentage of vacancies for people with disabilities and rehabilitated individuals from the National Institute of Social Security (INSS), ranging from 2% to 5%, depending on the company's size, as detailed below:
- From 100 to 200 employees: 2% of vacancies must be allocated to PWDs.
- From 201 to 500 employees: 3% of vacancies.
- From 501 to 1,000 employees: 4% of vacancies.
- Over 1,000 employees: 5% of vacancies.
Regarding the classification of type 1 diabetes, the Federal Senate highlighted that the responsibility for creating the necessary instruments for evaluating the disability will lie with the Executive Branch. This process will likely be similar to the evaluations that already occur with physical disabilities, where a thorough assessment is conducted for classification.
However, according to the information in the Project of Law, the classification as a person with a disability will be restricted exclusively to those with type 1 diabetes, excluding those with type 2 diabetes, a condition that does not require the same continuous care and specific treatments. Therefore, it is important to pay attention when making the classifications.
Given the difficulties faced in the labor market in hiring people with disabilities and those rehabilitated by the INSS, classifying type 1 diabetes as a disability could improve the hiring scenario for individuals with the condition, as well as facilitate compliance with the legal quota. To this end, it is important to monitor the next steps of the Executive Branch regarding this issue.
FAS Advogados is available to assist with any questions.
