Disability and the new South African Equity Regulations

by | Apr 22, 2023 | BEE | 0 comments

President Cyril Ramaphosa has signed into law the Employment Equity Amendment Act 4 of 2022. The Act amends the Employment Equity Act of 1998 (Act 55 of 1998) with new measures to promote diversity and equality in the workplace. The effective date is yet to be proclaimed by the President.

The new amendments have brought about some positive changes to smaller employers through a change in the definition of “designated employer.” The definition is amended to exclude employers who employ fewer than 50 employees, irrespective of their annual turnover.

Another major change was made to the definition of people with disabilities. Being part of a family with neurodiverse children, it was pleasantly surprised by this change.

The definition of “people with disabilities” is substituted to align with the definition in the United Nations Convention on the Rights of Persons with Disabilities, 2007. The amended definition includes within the meaning of “people with disabilities,” “people who have a long-term or recurring physical, mental, intellectual, or sensory impairment which, in interaction with various barriers, may substantially limit their prospects of entry into, or advancement in, employment.” This enhanced definition accords with a more expansive international understanding of what constitutes disabilities even though it is adopting a social model of disability.

Sensory impairment is easier to see and understand as it is described as a condition in which one or more of our special senses (sight, hearing, smell, touch, taste, and spatial awareness) is no longer normal. Sensory impairments are an often overlooked and invisible health condition in healthcare. One would then wonder if this definition would include those individuals suffering from sensory processing disorder?

Sensory processing disorder is a neurological condition that can affect the way the brain processes information from the senses. People with sensory processing disorder may be extra sensitive to or not react to sensory input, depending on how they are affected. These individuals are often those who do not do well in open-plan office environments and would probably be those that opted for a working-from-home arrangement. How would we as Employers reasonably accommodate this?

The Code of Good Practice on the Employment of People with Disabilities states that if reasonable accommodation for a qualifying applicant or an employee with a disability would impose unjustifiable hardship on the performance of the business, then the business need not accommodate such a person. Within the context of reasonable accommodation and/or assistive devices procured by employers when employing persons with disability, unjustifiable hardship is considered to be, in terms of paragraph 6.12 of the Code, an “Action that requires significant or considerable difficulty or expense.” With many businesses wanting their employees to return to the office, would this then mean that it becomes more difficult to reasonably accommodate such a person? Or do we strictly follow the Technical Assistance Guidelines on the Employment of People with Disabilities (Chapter 6 par.13) that asserts that the request for reasonable accommodation and/or assistive devices must be objectively explored before concluding that it poses ”unjustifiable hardship” on the respective business?

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