GOOD PRACTICE ON KEY ASPECTS OF DISABILITY
1.1. The Employment Equity Act, No. 55 of
1998 protects people with disabilities against unfair discrimination and
entitles them to affirmative action measures.
1.2. The Code is a guide for employers and
employees on key aspects of promoting equal opportunities and fair
treatment for people with disabilities as required by the Employment
Equity Act (the Act).
1.3. The Code is intended to help employers
and employees understand their rights and obligations, promote certainty
and reduce disputes to ensure that people with disabilities can enjoy
and exercise their rights at work.
The Code cover the following aspects:
3.1. The Code is not an authoritative
summary of the law, nor does it create additional rights and
obligations. Failure to observe the Code does not, by itself, render a
person liable in any proceedings. Nevertheless when the courts and
tribunals interpret and apply the Employment Equity Act, they must
3.2. The Code should be read in conjunction
with other Codes of Good Practice that may be issued by the Minister of
3.3. The Code is intentionally general
because every person and situation is unique and departures from the
standards in this code may be justified in appropriate circumstances.
3.4. Employers, employees and their
organisations should use the Code to develop, implement and refine
disability equity policies and programmes to suit the needs of their own
4. Legal Framework
The Code is issued in terms of Section
54(1)(a) of the Employment Equity Act, No. 55 of 1998 and is based on
the Constitutional principle that no one may unfairly discriminate
against a person on the grounds of disability.
5. Definition of People with Disabilities
5.1 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:
are considered as persons with
(ii) 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
(iii) 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.
(i) An impairment may be physical or
(ii) '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.
5.1.3 Substantially limiting
(ii) 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.
(iii) 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.
(iv) For reasons of public policy certain
conditions or impairments may not be considered disabilities. These
include but are not limited to:
6. Reasonable Accommodation for People
6.1. Employers should reasonably
accommodate the needs of people with disabilities. The aim of the
accommodation is to reduce the impact of the impairment of the person's
capacity to fulfil the essential functions of a job.
6.2. Employers may adopt the most
cost-effective means that are consistent with effectively removing the
barrier to a person being able to perform the job, and to enjoy equal
access to the benefits and opportunities of employment.
6.3. Reasonable accommodation applies to applicants and employees with disabilities and may be required:
6.4. The obligation to make reasonable
accommodation may arise when an applicant or employee voluntarily
discloses a disability related accommodation need or when such a need is
reasonably self-evident to the employer.
6.5. Employers must also accommodate
employees when work or the work environment changes or impairment varies
which affects the employee's ability to perform the essential functions
of the job.
6.6. The employer should consult the
employee and, where practicable, technical experts to establish
appropriate mechanisms to accommodate the employee.
6.7. The particular accommodation will
depend on the individual, the impairment and its effect on the person,
as well as on the job and the working environment.
6.8. Reasonable accommodation may be
temporary or permanent, depending on the nature and extent of the
6.9. Examples of reasonable accommodation include:
6.10. An employer may evaluate work
performance against the same standards as other employees but the nature
of the disability may require an employer to adapt the way performance
6.11. The employer need not accommodate a
qualified applicant or an employee with a disability if this would
impose an unjustifiable hardship on the business of the employer.
6.12. Unjustifiable hardship is action that
requires significant or considerable difficulty or expense and that
would substantially harm the viability of the enterprise. This involves
considering the effectiveness of the accommodation and the extent to
which it would seriously disrupt the operation of the business.
6.13. An accommodation that imposes an
unjustifiable hardship for one employer at a specific time may not be so
for another or for the same employer at a different time.
7. Recruitment and Selection
7.1.1 When employers recruit they should:
7.1.2. The inherent requirements of the job
are the purposes for which the job exists. The essential functions and
duties of the job are what are necessary to get the job done.
7.1.3. Application forms should focus on
identifying an applicant's ability to perform the essential functions of
7.1.4. Advertisements should be accessible
to persons with disabilities and, where practicable, circulated to
organisations that represent the interests of people with disabilities.
7.1.5. Advertisements or notices should
include sufficient detail about the essential functions and duties of
the job so that potential applicants with disabilities can make an
informed decision if they meet the inherent requirements of the job.
7.1.6. Employers should not include
functions that are not essential to performing the inherent requirements
of the job because selection based on non-essential functions may
exclude people with disabilities unfairly.
7.1.7. On request, and if reasonably
practicable, notices and advertisements should be provided in a format
appropriate to persons with disabilities, such as large print, Braille,
7.2.1. Employers should apply the same
criteria to test the ability of people with disabilities as are applied
to other applicants, although it may be necessary to accommodate
applicants who have disabilities.
7.2.2. The purpose of the selection process is to assess whether or not an applicant is suitably qualified. This may require a two-stage process if an applicant has a disability:
7.2.3. When assessing if an applicant is
suitably qualified an employer may not request information about actual
or perceived disability from a previous employer or third party.
7.2.4. Employers should monitor their
criteria for selection. If they tend to exclude people with
disabilities, they should be reviewed to ensure that inappropriate
barriers to persons with disabilities are removed.
7.3.1. Selection interviews should be
sensitive, objective and unbiased. Interviewers should avoid assumptions
about people with disabilities.
7.3.2. If an applicant has disclosed a
disability or has a self-evident disability, the employer must focus on
the applicant's qualifications for the work rather than any actual or
presumed disability but may enquire and assess if the applicant would,
but for the disability, be suitably qualified.
7.3.3. Interviewers should ask all
applicants to indicate how they would accomplish the inherent
requirements of the job and perform its essential functions and if
accommodation is required.
7.3.4. If the employer knows in advance
that an applicant has a disability the employer should be prepared to
make reasonable accommodation during the interview.
7.4 Conditional job offers
7.4.1. If an applicant with a disability is
suitably qualified, an employer may make a job offer conditional on
medical or functional testing to determine an applicant's actual or
potential ability to perform the essential functions of a specific job.
7.4.2. The testing must comply with the
statutory requirements and be consistent with measuring if the applicant
is able to perform the essential functions of the job, with or without
7.4.3. An employer may test applicants with
disabilities for a specific job and not require all other applicants to
7.4.4. If the testing shows that
accommodation requirements would create unjustifiable hardship, or that
there is an objective justification that relates to the inherent
requirements of the job or to health and safety, the employer may
withdraw the job offer.
7.5 Terms and conditions of
7.5.1. An employer may not employ people
with disabilities on less favorable terms and conditions for reasons
connected with the disability.
8. Medical and Psychometric Testing
8.1. Medical testing
8.1.1. Tests must be relevant and
appropriate to the kind of work and the necessary fitness criteria for
the job, the workplace and its hazards, and necessary to the employer's
8.1.2. Employers should establish that
tests do not unfairly exclude and are not biased in how or when they are
applied, assessed or interpreted.
8.1.3. Tests to establish the health of an
applicant or employee should be distinguished from tests that assess the
ability to perform essential job functions or duties.
8.1.4. Health testing should therefore only
be carried out after an employer has established that the person is in
fact competent to perform the essential job functions or duties and
after a job offer has been made. The same applies to medical testing for
admission to membership of an employee benefit scheme.
8.1.5. An employer who requires a person to
undergo any medical, health screening or safety test must bear the costs
of the test.
8.2. Testing after illness or injury
8.2.1. If an employee has been ill or
injured and it appears that the employee is not able to perform the job,
the employer may require the employee to agree to a functional
determination of disability.
8.2.2. Such medical or other appropriate
tests shall be to assess if the employee can safely perform the job or
to identify reasonable accommodation for the employee.
8.3. Health screening and safety
8.3.1. Employers are obliged to provide and
maintain a working environment that is safe and without risk to the
health of employees.
8.3.2. An employer should not employ a
person if the employer can demonstrate that a person with a disability
would represent an actual direct risk of substantial harm to his or her
own or other people's safety, which could not be eliminated or reduced
by applicable reasonable accommodation.
8.3.3. An employer may or need not retain
an employee with a withdraw a conditional job offer disability if
objective assessment shows that even with reasonable accommodation, the
work would expose the employee would expose others to substantial health
risk and that there is no reasonable accommodation to mitigate that
8.4 Pre-benefit medical examinations
8.4.1. Employees may be required to submit
to medical examination or tests before becoming members of employee
benefit schemes that are offered within the employment relationship.
8.4.2. The purpose of these examinations is
to assess a person's suitability for membership of a benefit scheme and
is not relevant to a person's capability to perform the inherent
requirements of the job.
8.4.3. Therefore an employer may not refuse
to recruit, train, promote or otherwise prejudice any person only
because that person has been refused membership of a benefit scheme.
9.1. Placement involves the orientation and
initial training a new employee.
9.2. New employees with disabilities must
be treated equally, subject to reasonable accommodation, to employees
who do not have disabilities.
9.3. Orientation and initial training
should be accessible, responsive to and able to accommodate the needs of
employees who have disabilities.
10. Training and Career Advancement
10.1. Employees with disabilities should be
consulted so as to develop specific career advancement programmes
responsive to their needs and circumstances.
10.2. Training, work organisation and
recreational benefits should be accessible to employees with
disabilities. Examples are training tools, materials, venues and
processes, as well as canteen facilities, parking, crèche and social and
10.3. Systems and practices to evaluate
work performance should clearly identify and fairly measure and reward
performance of the inherent requirements or essential functions of the
job. Work that falls outside the inherent requirements or essential
functions of the job should not be evaluated.
11. Retraining People with Disabilities
11.1. Employees who become disabled during
employment should, where practicable, be re-integrated into work .
11.2. If an employee is, or becomes a
person with a disability, the employer should keep in touch with the
employee and where practicable, encourage early return-to-work. This may
be require vocational rehabilitation, transitional work programmes and
where appropriate, temporary or permanent flexible working time.
11.3. If an employee is frequently absent
from work for reasons of illness or injury, the employer may consult the
employee to assess if the cause of the illness or injury is a disability
that requires accommodation.
11.4. If practicable, employers should
offer alternative work, reduced work or flexible work placement, so that
employees are not compelled or encouraged to apply for benefits if they
could, with reasonable accommodation, continue in employment.
13. Tremination of Employment
13.1. If an employee becomes disabled, the
employer should consult the employee to assess if the disability can be
13.2. If not, the employer should consult
the employee to explore the possibility of alternative employment
appropriate to the employee's capacity.
13.3. If the employee is unable to be
accommodated or there is not appropriate alternative employment, the
employer may terminate the employment relationship.
13.4. When employees who have disabilities
are dismissed for operational requirements, the employer should ensure
that any selection criteria do not directly or indirectly unfairly
discriminate against people with disabilities.
13.5. Employers who provide disability
benefits should ensure that employees are fairly advised before they
apply for the benefits available and before resigning from employment
because of a medical condition.
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