The outbreak of the COVID-19 pandemic has necessitated change in many ways. Businesses have had to adapt how they conduct their affairs and the general public now has to embrace hygiene standards in ways never thought of before. Some of these changes will form part of a “new normal” moving forward. In this article we indicate that changes made by businesses, courts and various other public fora to curb the spread of the virus should embrace the principle of universal design. This will be necessary to combat discrimination on the basis of disability and to provide reasonable accommodation where necessary.
Article 2 of the UN Convention on the Rights of Persons with Disabilities (hereinafter the “Convention”) provides that discrimination on the basis of disability is any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including the denial of reasonable accommodation.
It further provides that reasonable accommodation refers to necessary and appropriate modifications and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.
The said article 2 states that universal design is the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialised design. It further states that universal design shall not exclude assistive devices for particular groups of persons with disabilities where this is needed. South Africa became party to the Convention in November 2007, and is thus obliged to uphold these principles.
As indicated above, the COVID-19 outbreak has compelled many organisations to change the way they conduct their affairs in order to continue operating while curbing the spread of the virus. This note serves as a reminder that as important as it is to adapt to the “new “normal”, organisations should not unwittingly discriminate against employees on the basis of disability.
Changes made to a given work environment should be such that they can be accessible to as many people, while requiring little or no adaptation. However, where it is necessary, adaptations should be made in-keeping with the changing operational requirements. As is often the case, however, many organisations do not know what measures to put in place in order to give effect to what they already understand to be their legal obligations. Here are some of the factors to keep in mind.
The Code of Good Practice on the Employment of Persons with Disabilities (hereinafter the “Code”) should be every employer’s point of reference. The Code serves as a guide for employers and employees to promote equal opportunities and the fair treatment of persons with disabilities as required by the Employment Equity Act (hereinafter the “EEA”). The Code serves as a guide for employers and employees on important aspects of promoting equal opportunities and fair treatment for people with disabilities as mandated by the EEA.
It is important to be aware that the Code is not itself an authoritative source of law, nor does it create new employment rights and responsibilities. The Code states that although failure to observe its provisions does not render anyone liable for breach, courts and dispute resolution tribunals must nevertheless consider it when interpreting the EEA. The Code covers an array of aspects such as the definition of disability, reasonable accommodation for people with disabilities, avoiding unfair discrimination and achieving employment equity, amongst others. The Code paints in broad strokes because every person and situation is unique, and thus employers may reasonably depart from the standard provisions in order to create solutions that are unique to a particular workplace.
Section 1 of the EEA defines people with disabilities as people who have a long-term or recurring physical or mental impairment which substantially limits their prospects of entry into, or advancement in, employment. There is a 3-prong test to determine if one is covered by the definition in the EEA:
- A person must have an impairment, which may either be physical or mental, or a combination of both. A physical impairment means “a partial or total loss of a bodily function or part of the body. It includes sensory impairment such as having a hearing or visual impairment”. A mental impairment is a clinically recognised condition or illness that affects a person’s thought processes, judgement or emotions. This includes conditions such as intellectual, emotional and learning disabilities. For reasons of public policy, certain conditions or impairments may not be considered disabilities.
- The impairment must also be long-term or recurring. Long-term means that the impairment has lasted or is likely to last for 12 months. Recurring means that is likely to happen again and to be substantially limiting. Even though the condition goes away periodically, it returns and it is never cured. 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 with no disability, for example a person with cancer, tuberculosis or HIV would not be covered under the EEA until the symptoms substantially limit the person’s ability to perform their job.
- Lastly, the impairment must be substantially limiting, which means that its nature, duration, or effects substantially limit a person’s ability to perform essential functions of the job for which he/she is being considered. If the effects of the impairment are not substantially limiting, even if they are physical and/or mental, are long-term or recurring, then the person is not covered under the Act. Qualified experts may be used to assist the employer to determine whether a particular impairment is substantially limiting or an applicant or employee may be able to provide information sufficient to document this.
Another useful tool for employers is the Technical Assistance Guidelines on the Employment of People with Disabilities, which sets out how employers can abide by the definitions in the EEA and practically implement the provisions outlined in the Code.
In 2016 the Labour Court (hereinafter “LC”) heard the matter of Smith v Kit Kat Group. The LC conducted an enquiry into appropriate relief in the event where an employee had been unfairly discriminated against on the grounds of disability. In this matter the employee had suffered facial disfigurement resulting from a failed suicide attempt, which then caused a speech impairment. The employee was away from work for a few months, during which time the employer constantly assured the former that he would be well-received once he was ready to return.
When the employee eventually returned to tender his services to the employer he was told that his physical features were not acceptable, and that he was a constant reminder to the other employees of the unfortunate event. He was also told that his speech impairment made it difficult for other employees to understand him.
Not only did the employer not accept the employee’s return to service, but he did not take any steps to address the employee’s predicament. The employee then referred a discrimination dispute to the CCMA in terms of section 10 of the EEA. Resulting from a failed conciliation, the employee referred a dispute to the LC.
With reference to the Code, the LC assessed the employee’s state of affairs and concluded that the employee had a disability which was caused by his suicide attempt. The court then concluded that the employee was discriminated against on the grounds of disability. The LC stated that the employer had a duty to accommodate the employee, which stems from the obligation not to discriminate against the employee. The court found that the employer breached this obligation and awarded compensation and damages amounting to thirty months’ remuneration.
Employers are urged to assess how changes made in the work environment may have affected what was sufficient accommodation before the outbreak of the COVID-19 pandemic, not only to remain compliant with the law, but to also respect to the innate dignity of the concerned employees.
This article is intended for information purposes only. Mention is not necessarily made of all the finer nuances as set out in the relevant legislation. This article should under no circumstances be construed as formal legal advice.
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