What can people with disabilities expect when they have to take additional time off work because of a complication or consequence of their disability?
In terms of the Basic Conditions of Employment Act, every employee is entitled to one day’s sick leave per month – or 36 days in a rolling three-year cycle. Once the allocation of sick leave is exhausted, the employee’s sick leave will be deducted from their annual leave allocation. If the employee has no sick leave or annual leave left, any leave taken will be considered unpaid.
In the context of disability management, South African legislation and Codes of Good Practice on Disability require that employers “reasonably accommodate” employees with physical, mental impairments or any other disabilities. The concept of reasonable accommodation is not open-ended and it usually differs from one employer to another.
If an employee is unable to do the job for which they were employed – for example, if they are unable to come to the office for lengthy periods – how far can an employer be expected to go in accommodating these absences?
While the employer cannot demand that an ill or incapacitated employee come to the office, if alternative work arrangements (such as the employee working from home or taking another position in the organisation) are not feasible, the employer may have no other option but to initiate a process to terminate the employment arrangement – or have the employee medically boarded.
Medical boarding is a complex process and must be carried out in accordance with the Labour Relations Act.
The employee should be allowed the opportunity to state a case in response and to be assisted by a trade union representative or fellow employee.
The legislation provides guidelines in cases of potential dismissal arising from ill-health or injury. The employer must first assess the extent to which the employee is able to perform the work. It must then consider whether the work environment could be adapted to accommodate disability, or, if this is not possible, whether the employee’s duties could be adapted. The employer also needs to consider whether any suitable work alternative is available.
All this means that the decision to dismiss cannot be taken lightly and must follow an incapacity enquiry, which has to include evaluating what alternative and reasonable accommodation can be made.
While it’s not always possible to anticipate all events that might affect a person’s ability to perform their job, some are foreseeable. For example, additional time off for doctor’s visits or to collect medicine can be negotiated when discussing the initial employment contract. For anything less predictable, each situation would depend on the circumstances of both the employee and the employer. It’s therefore important that a company has an unambiguous process for ensuring that employees can freely declare their disability status.
Dr Jerry Gule is the chairman of South African Employers for Disability (SAE4D). email: majaheni.gule@gmail.com
