Two legal minds from a prominent legal firm, Cliffe Dekker Hofmeyr, Hugo Pienaar, a director, and Roxanne Bain, a candidate attorney in Cliffe Dekker Hofmeyr’s Employment Practice, have clarified the misinterpretation of the Employment Equity Act and the revised BBBEE codes on accommodating people with disabilities at the workplace, which leads to low compliance.
In article they have written, with input from Dr Jerry Gule, chairman of South African Employers for Disability (SAE4D) titled, Defining reasonable accommodation for people with disabilities, Pienaar and Bain explain that employers are not obliged to employ a person with a disability where that person cannot perform the essential functions of a job even with reasonable accommodation.
Accommodating people with disabilities is to make existing facilities accessible to people in wheel chairs or reorganising workstations. However, they acknowledge that the main challenge is usually defining what constitutes “reasonable” accommodation.
In terms of access, they argue that it would be foolhardy to expect a business which is located on the second floor of an old building that does not have a lift to make itself accessible to an employee, or a potential employee, who uses a wheel chair. Thus, the employers’ merits have to be examined, specifically, the hardship they might have to endure to accommodate the person on the second floor, for instance the costly route of installing a lift, or moving premises.
On the other hand, the employer cannot just plead unjustifiable hardship to shirk responsibility of providing a conducive environment for a person with disability to perform their duty to the best of their ability. First, they have to prove that the hardship is unjustifiable.
In the event the employee cannot perform a task, there is no obligation on the employer’s part to reassign the essential functions of the job to another employee in order to accommodate the employee. However, in certain circumstances, non-essential functions which are peripheral to the job for which the person is employed, should be reassigned.”
In the event the employee cannot perform a task, there is no obligation on the employer’s part to reassign the essential functions of the job to another employee in order to accommodate the employee. However, in certain circumstances, non-essential functions which are peripheral to the job for which the person is employed, should be reassigned.
All things considered, every case has to be handled according to its merits, just as people with disabilities will have different accommodation requirements, different businesses will have different capacities to implement the required accommodation. Each case has to be considered on its own merits.
This article was published on www.bizcommunity.co.za and has been adapted for Transform SA Online