LEGISLATURE


About 600 Million people are disabled in some way, and 2, 2 million of them live in South Africa.

The Employment Equity Act of 1998 states that 2% of your workforce must be represented by employers that has a disability.

CODE OF GOOD PRACTICE ON KEY ASPECTS OF DISABILITY IN THE WORKPLACE

This Code is issued by the Minister of Labour in terms of Section 54 of the Employment Equity Act, 1998 on the advice of the Commission for Employment Equity (CEE

1. DEFINITION OF PEOPLE WITH DISABILITIES

1.1 Defining persons with disabilities under the Act

The scope of protection for people with disabilities in employment focuses on the effect of a disability on the person in relation to the working environment, and not on the diagnosis of the impairment.

Only people who satisfy all the criteria in the definition:

Long-term or recurring;

Having a physical or mental impairment;

Which substantially limits;

Are considered as persons with disabilities.

1.1.1 Long-term or recurring

Long-term means the impairment has lasted or is likely to persist for at least twelve months. A short-term or temporary illness or injury is not an impairment which gives rise to a disability.

A recurring impairment is one that is likely to happen again and to be substantially limiting (see below). It includes a constant underlying condition, even if its effects on a person fluctuate.

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 are not disabilities.

1.1.2 Impairment

Impairment may be physical or mental.

Physical' impairment means a partial or total loss of a bodily function or part of the body. It includes sensory impairments such as being deaf, hearing impaired, or visually impaired and any combination of physical or mental impairments.

'Mental' impairment means a clinically recognised condition or illness that affects a person's thought processes, judgment or emotions.

1.1.3 Substantially limiting

An impairment is substantially limiting if, in the absence of reasonable accommodation (Please see notes on Abacus website regarding accommodation in the workplace) by the employer, a person would be either totally unable to do a job or would be significantly limited in doing the job.

Some impairments are so easily controlled, corrected or lessened, that they have no limiting effects. For example, a person who wears spectacles or contact lenses does not have a disability unless even with spectacles or contact lenses the person's vision is substantially impaired.

An assessment 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 are prevented or removed.

For reasons of public policy certain conditions or impairments may not be considered disabilities. These include but are not limited to:

sexual behavior disorders that are against public policy;

self-imposed body adornments such as tattoos and body piercing;

compulsive gambling, tendency to steal or light fires;

disorders that affect a person's mental or physical state if they are caused by current use of illegal drugs or alcohol,

unless the affected person is participating in a recognized programme of treatment;

normal deviations in height, weight and strength; and

Conventional physical and mental characteristics and common personality traits.

Since the act came into practise there have been numerous high court judgments that affects the interpretation on the law. For e.g. on Assessment and individualisation:

MACLEAN V SASOL MINE (PTY) LTD SECUNDA COLLIERY/MCLEAN V SASOL PENSION FUND (HIGH COURT):

Moreover, in order for there to be true individualisation a close assessment should be made of the individual in question since even persons with the same disability vary markedly in how they personally function and cope with their affliction or vary in the degree of impairment because of vary stages of their infirmity.