Code of good practice on disability in the workplace in South Africa
5. DEFINITION OF PEOPLE WITH DISABILITIES
5.1 Defining persons with disabilities under the Act
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:
(i) long-term or recurring;
(ii) having a physical or mental impairment;
(iii) which substantially limits,
are considered as persons with disabilities.
5.1.1 Long-term or recurring
(i) 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.
(ii) 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.
(iii) 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.
(i) An impairment may be physical or mental.
(ii) ‘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.
(iii) ‘Mental’ impairment means a clinically recognised condition or illness that affects a person’s thought processes, judgment or emotions.
5.1.3 Substantially limiting
(i) 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.
(ii) Some impairments 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.
(iii) 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.
(iv) For reasons of public policy certain conditions or impairments may not be considered disabilities. These include but are not limited to:
• sexual behavior 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; and
• conventional physical and mental characteristics and common personality traits.
6. REASONABLE ACCOMMODATION FOR PEOPLE WITH DISABILITIES IN SOUTH AFRICA
6.1. 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.
6.2. 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.
6.3. Reasonable accommodation applies to applicants and employees with disabilities and may be required:
(i) during the recruitment and selection processes;
(ii) in the working environment;
(iii) in the way work is usually done and evaluated and rewarded; and
(iv) in the benefits and privileges of employment.
6.4. 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.
6.5. Employers must also accommodate employees when work or the work environment changes or impairment varies which affects the employee’s ability to perform the essential functions of the job.
6.6. The employer should consult the employee and, where practicable, technical experts to establish appropriate mechanisms to accommodate the employee.
6.7. 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.
6.8. Reasonable accommodation may be temporary or permanent, depending on the nature and extent of the disability.
6.9. Examples of reasonable accommodation include:
(i) adapting existing facilities to make them accessible;
(ii) adapting existing equipment or acquiring new equipment including computer hardware and software;
(iii) re-organising work stations;
(iv) changing training and assessment materials and systems;
(v) restructuring jobs so that non-essential functions are re-assigned;
(vi) adjusting working time and leave;
(vii) providing readers, sign language interpreters, and
(viii) providing specialised supervision, training and support.
6.10. 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.
6.11. 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.
6.12. 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.
6.13. 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.