The “reasonable accommodation” of employees with a disability is not open-ended.
There is often some confusion regarding the legislated requirements that organisations (public and private) provide for the “reasonable accommodation” of people with disabilities without causing the organisation “unjustifiable hardship”.
The Disability Code of the Employment Equity Act states that employers should reasonably accommodate people with disabilities. It also states that the purpose of this accommodation is to minimise the effect of the particular person’s disability on their ability to fulfil the essential functions of a job, as well as to participate or advance in employment on an equal basis as fully as all other employees.
There are many factors to take into account when an organisation has to hire people, including people with disabilities, as the employer has to ensure that the right person is hired for the right job where they are suitably qualified.
However, employers are not obliged to employ anyone, including a person with a disability, if that person cannot perform the essential functions of the job, even with reasonable accommodation.
To do so would be unfair to the organisation and to the person. Frankly it would be an assault on the person’s dignity to put them in a function they would not be capable of performing even with assistance.
While the concept of accommodation itself is easy to understand – for example, making existing facilities accessible to people who are wheelchair users, or reorganising workstations so that they are ergonomical and user-friendly – the question of what is “reasonable” is often less clear.
Would it be reasonable to expect a business that hires space on the second floor of an old building with no modern lift to make it accessible to a potential employee who uses a wheelchair?
The actions required to accommodate the employee – installing a lift, say, or even moving premises – could be regarded as causing “unjustifiable hardship” to the organisation. However, if the business also has offices on the ground floor, it may not be an “unjustifiable hardship” to accommodate the person on the ground floor.
The law requires the employer to investigate the particular accommodation required by the person with a disability and how effective it would be in reducing the impact of their disability on their ability to perform the essential functions of the job. The employer also needs to consider the costs of the accommodation before deciding whether the provision of reasonable accommodation would entail “unjustifiable hardship”.
Should an individual no longer be able to do the job for which he or she was employed due to injury or illness, employers are not obliged to create a new position for the individual for the purpose of reasonably accommodating the person. In addition, the employer need not reassign the essential functions of the job to another employee. However, in certain circumstances, non-essential functions that are peripheral to the job can be reassigned.
Employers cannot simply claim that the cost of the required reasonable accommodation is unaffordable; the employer has to prove that the hardship is unjustifiable.
In conclusion, there cannot be a ‘one-size fits all’ approach. Just as people with disabilities will have different accommodation needs, different businesses will have varying capacities to implement the required accommodation. Each case must be considered on its own merits.
Dr Jerry Gule is chairman of South African Employers for Disability (SAE4D) and general manager: Total Marketing Services Competency Centre (Pty) Ltd.
