Spotlight on employees with disabilities: Employers can no longer make general, and unfounded assumptions about people with disabilities

Spotlight on employees with disabilities: Employers can no longer make general, and unfounded assumptions about people with disabilities

1. Introduction

The prohibition of discrimination on the grounds of disability is a new concept

in South African law. Its initial introduction was by virtue of the Employment Equity Act of 1998 (Act No 55). The Act explicity protects people with disabilities against unfair discrimination, and entitles them to affirmative action measures.

Compliance with the Code Of Good Practice For people With Disabilities poses a not insignificant challenge to employers in both the public and private sectors, and requires a close examination and understanding of these provisions.

2. Employment equity planning in respect of people with disabilities

The Code of Good Practice for the preparation, implementation and monitoring of Employment Equity Plans provides guidelines to employers and employees to ensure that people with disabilities who are suitably qualified for a job can enjoy equal opportunities and are equitably represented in the workforce.

When designated employers are consulting employees they should use the opportunity to heighten the awareness of their employees of the value and importance of recruiting and retaining employees who have disabilities. When an employer facilitates the establishment of a consultative forum in terms of Section 16 (1) (a) and (b) of the Act, the employer should take specific steps to promote the representation of employees with different disabilities in the forum. If people with disabilities are under-represented in all occupational levels and categories in the workplace, the employer could seek guidance from organisations that represent people with disabilities, or from relevant experts, for example in vocational rehabilitation and occupational therapy.

The workplace profile should include any employees who are not in active employment; for example employees who are receiving total or partial income replacement benefits while recovering from illness or disability. When designated employers are setting targets, they should aim to recruit and promote people with disabilities at all occupational levels, as people with disabilities are often employed in low status work, and tend to be promoted less often than employees without disabilities.

If employees with disabilities are concentrated in particular occupational categories, the employer should consider if its criteria for selection, or performance standards could be adapted to facilitate employees with disabilities being employed in different categories.

3. Definition of people with disabilities

What type of disabilities does the 1998 Act cover? The scope of protection for people with disabilities in employment focuses on the effect of a disability on the person in relation to the working environment, and not on the diagnosis of the impairment.

Only people who satisfy all the criteria in the definition are considered as persons with disabilities:

>> Long-term or recurring

>> Having a physical or mental impairment

>> Which substantially limits the person

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>> Long-term or recurring

Long-term means the impairment has lasted or is likely to persist for at least twelve months. A short-term, or temporary illness or injury is not an impairment which gives rise to a disability. A recurring impairment is one that is likely to happen again and to be substantially limiting (see below). It includes a constant underlying condition, even if its effects on a person fluctuate.

Progressive conditions are those that are likely to develop, or change, or recur. People living with progressive conditions or illnesses are considered as people with disabilities once the impairment starts to be substantially limiting. Progressive or recurring conditions which have no overt symptoms or which do not substantially limit a person are not disabilities.

>> Impairment

Impairment may be physical or mental. 'Physical' impairment means a partial or total loss of a bodily function or part of the body. It includes sensory impairments such as being deaf, hearing impaired, or visually impaired and any combination of physical or mental impairments.

'Mental' impairment means a clinically recognised condition or illness that affects a person's thought processes, judgment or emotions.

>> Substantially limiting

An impairment is substantially limiting if, in the absence of reasonable accommodation by the employer, a person would be either totally unable to do a job or would be significantly limited in doing the job.

Some impairment are so easily controlled, corrected or lessened, that they have no limiting effects. For example, a person who wears spectacles, or contact lenses does not have a disability unless even with spectacles or contact lenses the person's vision is substantially impaired.

An assessment whether the effects of impairment are substantially limiting must consider if medical treatment, or other devices would control, or correct the impairment so that its adverse effects are prevented or removed. For reasons of public policy certain conditions or impairments may not be considered disabilities. These include, but are not limited to:

# Sexual behaviour disorders that are against public policy

# Self-imposed body adornments such as tattoos and body piercing

# Compulsive gambling, tendency to steal or light fires

# Disorders that affect a person's mental or physical state if they are caused by current use of illegal drugs or alcohol (unless the affected person is participating in a recognised programme of treatment)

# Normal deviations in height, weight and strength

# Conventional physical and mental characteristics and common personality traits.

An important feature of the Act is the extremely broad definition, which it gives to disability i.e. bodily, or mental functions, including the absence of a part of a person’s body, a condition, illness or disease which affects a person's thought process, perception of reality, emotions or judgement, or which results in disturbed behaviour and is taken to include a disability which exists at present or which previously existed but no longer exists or which may exist in the future or which is imputed to a person.

This definition focuses on the medical characteristics of a disability as opposed to the functions, which a disabled person can or cannot perform.

4. What type of discrimination is prohibited?

Discrimination on the grounds of disability is prohibited by the 1998 Act, in a variety of areas in the employment sphere, including:

>> Recruitment

>> Pre-employment medical and psychological testing

>> Access to and conditions of employment

>> Training and promotion and classification posts

>> Equal pay for like work

>> Advertising relating to employment, which indicates an intention to discriminate.

The Act provides that discrimination occurs where "one person is treated less favourably than another is, has been, or would be treated'.

Consequently, in order to prove discrimination in an employment context, an individual with a disability must be able to show that he or she was treated less favourably than some other comparable person who does not have a disability and where their circumstances are not "materially different". As with discrimination on other grounds, the Act prohibits both direct and indirect discrimination on the basis of disability.

Direct discrimination is relatively easy to identify. It occurs when a person, by reason of a disability, is treated less favourably than a person who is not disabled would be. For example, an employer may operate a policy of not employing people in wheelchairs.

By contrast, indirect discrimination tends to be subtler. It occurs when a provision, requirement or practice of the employer applies equally to disabled and non- disabled persons, but operates so as to disadvantage a proportionately higher percentage of disabled persons than non-disabled persons.

5. Reasonable accommodation for people with disabilities

The Act shows an appreciation of the fact that people, by reason of disability,

may not in fact be fully able to perform a job, or particular task associated with the job. However, a disabled person will be regarded as fully competent and able, if, with the assistance of special treatment or facilities, he or she would be fully competent and capable of undertaking the duties required of a particular job.

>> Employers should reasonably accommodate the needs of people with disabilities. The aim of the accommodation is to reduce the impact of the impairment of the person's capacity to fulfil the essential functions of a job.

>> Employers may adopt the most cost-effective means that are consistent with effectively removing the barrier to a person being able to perform the job, and to enjoy equal access to the benefits and opportunities of employment.

>> Reasonable accommodation applies to applicants and employees with disabilities and may be required:

# During the recruitment and selection process

# In the working environment

# In the way work is usually done and evaluated and rewarded

# In the benefits and privileges of employment

>> The obligation to make reasonable accommodation may arise when an applicant or employee voluntarily discloses a disability related accommodation need or when such a need is reasonably self-evident to the employer.

>> Employers must also accommodate employees when work or the work environment changes, or the impairment varies which affects the employee's ability to perform the essential functions of the job.

>> The employer should consult the employee and, where practicable, technical experts to establish appropriate mechanisms to accommodate the employee.

>> The particular accommodation will depend on the individual, the impairment and its effect on the person, as well as on the job and the working environment.

>> Reasonable accommodation may be temporary, or permanent, depending on the nature and extent of the disability.

Examples of reasonable accommodation include:

# Adapting existing facilities to make them accessible

# Adapting existing equipment or acquiring new equipment including computer hardware and software

# Re-organising work-stations

# Changing training and assessment materials and systems

# Restructuring jobs so that non-essential functions are re-assigned

# Adjusting working time and leave

# Providing readers, sign language interpreters

#Providing specialised supervision, training and support

>> An employer may evaluate work performance against the same standards as other employees but the nature of the disability may require an employer to adapt the way performance is measured.

>> The employer need not accommodate a qualified applicant or an employee with a disability if this would impose an unjustifiable hardship on the business of the employer.

>> Unjustifiable hardship is action that requires significant or considerable difficulty or expense and that would substantially harm the viability of the enterprise. This involves considering the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business.

>> An accommodation that imposes an unjustifiable hardship for one employer at a specific time may not be so for another or for the same employer at a different time.

6. Retaining people with disabilities

Employees who become disabled during employment should, where practicable, be re-integrated into work. If an employee is, or becomes a person with a disability, the employer should keep in touch with the employee and where practicable, encourage early return-to-work. This may be require vocational rehabilitation, transitional work programmes and where appropriate, temporary or permanent flexible working time.

If an employee is frequently absent from work for reasons of illness or injury, the employer may consult the employee to assess if the cause of the illness or injury is a disability that requires accommodation.

Employers should, where practicable, offer alternative work, reduced work or flexible work placement, so that employees are not compelled or encouraged to apply for benefits if they could, with reasonable accommodation, continue in employment.

7. Termination of employment

If an employee becomes disabled, the employer should consult the employee to assess if the disability can be reasonably accommodated. If not, the employer should consult the employee to explore the possibility of alternative employment appropriate to the employee's capacity. If the employee is unable to be accommodated or there is not appropriate alternative employment, the employer may terminate the employment relationship.

When employees who have disabilities are dismissed for operational requirements, the employer should ensure that any selection criteria do not directly or indirectly unfairly discriminate against people with disabilities.

Employers who provide disability benefits should ensure that employees are fairly advised before they apply for the benefits available and before resigning from employment because of a medical condition.

8. Conclusion

Once an employer is put on notice of an employee's or prospective employee's disability, they must take proactive steps in order to investigate the extent to which this disability impedes the individual's ability to carry out their job. As a result of this investigation, an employer is obliged to provide reasonable accommodation provided that the provision of such will not cause the employer to incur greater than reasonable cost.

Great care ought to be taken with pre- employment medical assessments. If any such assessment reveals a disability on the part of the applicant, the employer cannot automatically refuse employment on the basis of the disability in question, unless the employer is in a position to establish that the disability affects a person's ability to fully undertake the requirements of the position and/or that the applicant would require reasonable accommodation in excess of reasonable cost to the employer.

An employer can no longer make general unfounded assumptions about a prospective or actual employee's ability or lack thereof. Any such instinctive response will almost certainly fall foul of the 1998 Act.