Understanding reasonable accommodation

According to the Employment Equity Act 1998, employers are expected to reasonably accommodate the needs of people with disabilities, and to ensure enjoy equal access to the benefits and opportunities of employment. The purpose of this accommodation should be to reduce the impact of the impairment on the person’s capacity to fulfil the functions of the job.

A reasonable accommodation is assistance or changes to a position or workplace that will enable an employee to do his or her job despite having a disability. Under the EEA, employers are required to provide reasonable accommodations to qualified employees with disabilities, unless doing so would pose an undue hardship. Qualified employees are those who hold the necessary degrees, skills, and experience for the job; and who can perform its essential functions, with or without an accommodation. Essential functions are the fundamental duties of a position — those things that the person holding the job absolutely must be able to do. An employee with a disability must be able to perform the essential job functions, with or without a reasonable accommodation, to be protected by the Employment Equity Act.

This is both a non-discrimination and an affirmative action requirement. The aim of this accommodation is to enable the person to perform the essential functions of the job. Reasonable accommodation, which refers to modifications or alterations to the way a job is normally performed, should make it possible for a suitably qualified person with a disability to perform as everyone else. The type of reasonable accommodation required would depend on the job and its essential functions, the work environment and the person’s specific impairment.

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. Employers must also accommodate employees when work or the work environment changes or an impairment affects the employee’s ability to perform the essential functions of the job.

When is reasonable accommodation required?

Reasonable accommodation can apply to both job applicants and employees with disabilities in some of the following scenarios:

• during the recruitment and selection processes;
• in the working environment;
• in the way work is usually done and evaluated and rewarded; and
• in the benefits and privileges of employment.

The need to make reasonable accommodations can arise when applicants or employees voluntarily disclose a disability-related accommodation need, or when this need is self-evident to the employer.

But what is “reasonable”?

Both employers and employees have a stake in this issue and may have different opinions. To offer the job in the first place, an employer has to be reasonably sure the applicant is qualified and can carry out the job’s major activities. A worker with a disability may ask for accommodations to help with marginal or incidental job functions. These could include scheduling, physical space adaptations, the use of interpreters or personal-care attendants, and performing the work differently. The bottom line is: Is the final outcome in line with expectations for other employees doing the same work?

Examples of reasonable accommodation according to the Employment Equity Act

Examples of reasonable accommodation include (but are not limited to):

• adapting existing facilities to make them accessible;
• adapting existing equipment or acquiring new equipment including computer hardware and software;
• addressing impact of light and noise;
• changing training and assessment materials and systems;
• restructuring jobs so that non-essential functions are re-assigned;
• providing readers, sign language interpreters;
• providing specialised supervision, training and support;
• re-organising work stations; —for example, by modifying the height of desks and equipment, installing computer screen magnifiers, or installing telecommunications for the deaf;
• restructuring jobs—for example, allowing a ten-hour/four-day workweek so that a worker can receive weekly medical treatments;
• modifying exams and training material—for example, allowing more time for taking an exam, or allowing it to be taken orally instead of in writing;
• providing a reasonable amount of additional unpaid leave for medical treatment
• hiring readers or interpreters to assist an employee;
• providing temporary workplace specialists to assist in training, and
• transferring an employee to the same job in another location to obtain better medical care.

These are just a few possible accommodations. The possibilities are limited only by an employee’s and employer’s imaginations—and the reality that one or more of these accommodations might be financially impossible in a particular workplace.

Negotiating an Accommodation

If you have a disability, you will be in the best possible position if you approach a potential employer with answers to the questions on their list of potential queries.

Here are some things to ponder:

• Analyse the job you want and isolate its essential functions.
• Write down precisely what job-related limitations your condition imposes and note how they can be overcome by accommodations.
• Identify potential accommodations and assess how effective each would be in allowing you to perform the job.
• Estimate how long each accommodation could be used before a change would be required.
• Document all aspects of the accommodation—including cost and availability.

Guidelines for people with disabilities when reasonable accommodation is required

• Be able to explain in your own words the type of accommodation that you require relating to the specific nature, degree and severity of your disability.
• Take responsibility to ask for accommodation if you should require any.
• Know that you have the right to ask for accommodation at any stage of the employment process.
• Make the final decision about the type of accommodation that you require, but be responsible enough to know that it must be a viable option for both yourself and the employer.

When reasonable accommodation doesn’t apply

Reasonable accommodation is not always possible, and employers do not need to accommodate an applicant or employee with a disability if this accommodation would impose an unjustifiable hardship on the business of an employer.  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.

To show that a particular accommodation would present an undue hardship, an employer would have to demonstrate that it was too costly, extensive, or disruptive to be adopted in that workplace.

Factors that will determine whether a particular accommodation presents an undue hardship on a particular employer:

• The nature and cost of the accommodation
• The financial resources of the employer—a large employer, obviously, reasonably being asked to foot a larger bill for accommodations than a mom and pop business
• The nature of the business, including size, composition, and structure, and
• Accommodation costs already incurred in a workplace.

Are employees required to disclose disabilities?

No. Employees are fully entitled to keep their disability status confidential. However, if the employer is not aware of the disability, or the need to be accommodated therein, the employer is not required to provide it.

If, however, the employee requires a reasonably accommodated environment in a disability-smart organisation, you would typically need to disclose your condition. And if the disability is not self-evident the employer may require the employee to disclose sufficient information to confirm the disability or the accommodation needs.

Protecting the employee’s right to confidentiality

If an applicant or employee chooses to disclose their disability, the employer must protect the confidentiality of the information that has been disclosed and must take care to keep records of private information relating to the disability of applicants and employees confidential and separate. When an employer no longer requires the information, it must be returned to the employee or be destroyed or rendered anonymous. That said, when it comes to reasonable accommodation, if accommodating the employee requires the co-operation of other employees, it may be necessary to reveal the fact of a person’s disability if it is not otherwise obvious, to some of the person’s colleagues, particularly a supervisor or manager. The employer may also, after consulting the person with the disability, advise relevant staff that the employee requires accommodation, without disclosing the nature of the disability, unless this is required for the health or safety of the person with the disability or other persons.