HR Pulse

Incapacity of people with disabilities due to illness – what should employers do?

What can, or should, employers do when it comes to people with disabilities requiring additional time off work because of a complication or consequence of their disability?

According to Dr Jerry Gule, Chairman of South African Employers for Disability (SAE4D), that is an issue that often raised by SAE4D members and other employers.

“The problem is that many employers often do not have the requisite policies and procedures for such an occurrence,” he said.

“More often than not, employers would only consider the issue when an employee with a disability is at a point when they have to take time off. By that stage, it might be too late to address matters rationally and enter into discussions or negotiations about how best to handle the situation.”

Dr Gule pointed out that the terms of the Basic Conditions of Employment Act regarding sick leave are relatively simple to implement: 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 his/her annual leave allocation. Thereafter, if the employee has no sick leave or annual leave available, any leave taken will be considered unpaid.

“These are the provisions of the law. Thereafter, we enter into a grey area in which each case has to be considered on its merits,” he added.

“In addition, it is important to note that 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. Nevertheless, the concept of reasonable accommodation is not open-ended and it can and probably will differ from one employer – and one employee - to another.”

Where 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 such absences?

According to Dr Gule, 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 Sections 10 and 11 of Schedule 8 of the Labour Relations Act (LRA). Schedule 8 of the LRA sets out the Code of Good Practice in relation to dismissal.

Section 10 deals with incapacity due to ill-health or injury and states:

 (1) Incapacity on the grounds of ill health or injury may be temporary or permanent. If an employee is temporarily unable to work in these circumstances, the employer should investigate the extent of the incapacity or the injury. If the employee is likely to be absent for a time that is unreasonably long in the circumstances, the employer should investigate all the possible alternatives short of dismissal. When alternatives are considered, relevant factors might include the nature of the job, the period of absence, the seriousness of the illness or injury and the possibility of securing a temporary replacement for the ill or injured employee. In cases of permanent incapacity, the employer should ascertain the possibility of securing alternative employment, or adapting the duties or work circumstances of the employee to accommodate the employee's disability.

(2) In the process of the investigation referred to in subsection (1) 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.

(3) The degree of incapacity is relevant to the fairness of any dismissal. The cause of the incapacity may also be relevant. …

Section 11 contains guidelines in cases of dismissal arising from ill-health or injury

Any person determining whether a dismissal arising from ill health or injury is unfair should consider:

   (a)   whether or not the employee is capable of performing the work; and

   (b)   if the employee is not capable:

(i) the extent to which the employee is able to perform the work;

(ii) the extent to which the employee's work circumstances might be adapted to accommodate disability, or, where this is not possible, the extent to which the employee's duties might be adapted; and

(iii) the availability of any suitable alternative work".

“This means that the decision to dismiss cannot be taken lightly and must follow an incapacity enquiry which has to include evaluating what, if any, alternative and reasonable accommodation can be made,” he said.

While it might not always be possible to anticipate all events that could occur to impact a person with a disability’s ability to perform the job for which they were employed, 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.

“This points to the importance of ensuring that a company creates a safe environment and has an unambiguous process for ensuring that employees can freely declare their disability status,” Dr Gule concluded.