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The Employment Equity Act no 55, of 1998 has come into effect to:
1 End unfair discrimination
2 Implement affirmative action
There are 2 groups designated in the Act;
1 Employers who employ more than 50 workers,
2 Employees who are black, women and physically or mentally disabled people
We are concentrating on the disabled group and on the Employers of this group.
I expect that there are many Employers who will ask the people attending this training workshop to clarify what is a ‘reasonable accommodation’ for their prospective or actual disabled employees.
I think we should try to keep it simple, because if there are more complicated circumstances, this should be referred to a Labour Relations attorney.
‘People with Disabilities’ refers to people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in employment.
This is the definition in terms of the Act.
It is expected that disabled persons should be employed across the board, not just at one level, so the whole of the premises should be made accessible. Mostly it is a good idea to presume that the CEO could be the disabled person, and then the rest falls into place! The only excuse an employer may use for not providing ‘reasonable accommodation’ for the disabled worker is ‘unjustifiable hardship’. This is action that requires significant or considerable difficulty or expense and that would substantially harm the viability of the enterprise.
Examples of reasonable accommodation include:
1 adapting existing facilities to make them accessible.
2 Adapting existing equipment or acquiring new equipment including computer hardware and software.
3 Re-organising workstations.
4 Changing training and assessment materials and systems.
5 Restructuring jobs so that non-essential functions are re-assigned.
6 Adjusting working time and leave.
7 Providing readers, sign language interpreters, and
8 Providing specialised supervision, training and support.
These items are listed in the draft Code of Good Practice under the EEA.
In Britain in the proposed Part Z regulation for accessibility it suggests that ‘reasonableness’ will be subject to 4 tests:
1 That there is substantive evidence confirming that the provision will be of genuine value to the building users concerned.
2 That the special provision does not inconvenience other users of the building. (This applies where the advantages it will have outweigh the disadvantages caused to others)
3 That the special provision is warranted as a rule; it will not be warranted if the need which it is intended to serve could just as well or better have been served by suitable normal provision.
4 That the cost of the provision is not unduly disproportionate to the scale of need there might be for it.
In the EE Code of Good Practice the definition is dissected:
1 Long-term or recurring
2 Physical or mental impairment
3 Substantially Limiting.
Only persons who satisfy all 3 criteria are considered as persons with disabilities.
1 Long-term or recurring:
1.1 Long term means is likely to persist for at least 12 months
1.2 Recurring is an impairment that is likely to happen again and to be substantially limiting. It includes a constant underlying condition, even if its effect on a person fluctuate.
1.3 People living with progressive conditions or illnesses are considered people with disabilities once the impairment starts to be substantially limiting. Recurring conditions which have no overt symptoms or which do not substantially limit a person are not disabilities.
2 Physical or mental impairment:
2.1 Physical impairment means a partial or total loss of bodily function or part of the body. This includes sensory impairments such as being deaf, hearing impaired, or visually impaired.
2.2 Mental impairment means a clinically recognized condition that affects a persons thought processes, judgement or emotions.
3 Substantially Limiting:
3.1 An impairment is considered substantially limiting if in the absence of reasonable accommodation by the employer, a person would be either totally unable to do the job or limited in doing the job.
3.2 Some impairments are so easily controlled, corrected or lessened, that they have no limiting effects.For example, a person who needs to wear contact lenses or spectacles does not have a disability, unless even with the lenses the persons vision is still substantially impaired.
3.3 An assessment of 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 is prevented.
3.4 Certain conditions may not be considered disabilities.
These include:
· Sexual disorders that are against public policy
· Self imposed body adornments such as tatoos and body piercing
· Compulsive gambling, tendency to steal or light fires.
· Current use of illegal drugs or alcohol, unless the person is participating in a rehabilitation programme.
· Normal deviation in height weight or strength
· Personality traits.
Unjustifiable hardship;
1 Action that requires significant or considerable difficulty or expense, and that would substantially harm the viability of the enterprise.
2 An accommodation is always assessed on a case by case basis, as the size, type and financial recourses of
businesses are so different, that what is unjustifiable for one business may not qualify as unjustifiable hardship for another company.
Employers wrongly perceive that the cost of reasonable accommodation is high. Statistics show that 20% cost nothing at all!
50% cost between R1 and R50
11% cost between R50 and R100
3% cost between R100 and R1 000
4% cost between R1 000 and R2 000
8% cost between R2 000 and R5 000
4% cost over R5 000.
These are statistics done a few years ago in USA.
Joan Seirlis B Arch. UCT MIArch, KZ-NIA |
