The Law & You - Areas of employment
Disability Law 103:
The Right to Reasonable Accommodation
The right to demand and receive reasonable accommodation (RA) is the most important practical right for people with disabilities as it is used daily. This article, the first in a series on this topic, will cover practical RAs in employment and society for people with disabilities. Our readers should know what the right to RA is, which RA to ask for, when to demand it, and what to do if it is denied.
RA ensures that rights to dignity and equality respected. This article covers the area of employment, in which the right to RA helps address unfair discrimination and is an affirmative action measure. Other articles will cover areas except employment, in which the right to RA can be used to challenge unfair discrimination, and help promote equal access, equal participation and equality of opportunity to receive goods, services and benefits.
People with physical, mental, psycho-social, sensory, neurological, learning or developmental disabilities – whether these conditions are permanent, temporary, episodic or fluctuating – may experience barriers that lead to activity limitations and / or participation restrictions. When these situations occur, individuals should demand the RA they need to promote their dignity and equality, and their right to equal access, participation and benefits. All of us have the right to ask for the RA we need, and to receive it - unless the person who has to do so, can prove that it will be unjustifiably hard or be an undue burden to provide it.
The Convention on the Rights of People with Disabilities (UN CRPD) states that “reasonable accommodation means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”
In employment, “reasonable accommodation means any modification or adjustment to a job, or to the working environment that will enable a person from a designated group to have access to or participate or advance in employment” under the Employment Equity Act (EEA).
EEA section 15(2)(c) reads that RA is an “affirmative action measure” to make “reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented in the workforce of a designated employer”.
A disabled employee should be aware of two important things about RAs:
- There is a RA for their disability that will be able to address the barrier that their disability results in, or that the work environment causes.
- Most workplace difficulties experienced can be solved and overcome by a RA.
RAs must be requested, if work performance difficulties arise due to a disability or due to the work environment involved, when these issues start to impact working abilities. For example, in these circumstances a RA should be requested by the employee:
- A physically disabled wheelchair / caliper user may find their workstation too far from areas they must access / work in. Lifting or moving heavy objects and physical barriers like stairs, walkways or floor surfaces may make working difficult or unsafe.
- A sensorial disabled employee may have difficulty operating a machine, using electronic equipment or with conditions worked in. Temperature, noise, vibration or lighting may cause distress and lead to performance difficulties.
- A mentally ill employee on medication may find working under pressure, shift work, irregular working hours or long periods of concentration and strain difficult or unsafe.
The EEA’s Disability Code (at section 6.1) recommends to employers that they “should reasonably accommodate the needs of people with disabilities” and that 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”. In section 6.3, the Code also says that RA applies “during the recruitment and selection”, “in the working environment”, “in the way work is usually done, evaluated and rewarded” and “in the benefits and privileges of employment”.
So, the disabled employee should identify the actual RAs needed with a qualified health professional (like an occupational therapist qualified in vocational rehabilitation). There is no list of accommodations for each disability, and there may be a few disabilities that each need a RA. The Code at section 6.7 says that RA involved “will depend on the individual, the degree and nature of the impairment and its effect on the person, as well as on the job and the working environment.”
The employee and employer need to agree on the RA involved. It can even be tested to check if it will be effective, and altered if it is not suitable. The Code (section 6.9) has practical examples of RAs: (i) adapting existing facilities to make them accessible (like installing an electronic door opener or installing a ramp); (ii) adapting existing equipment or acquiring new equipment including computer hardware and software (like installing a foot pedal to control equipment, or voice-operated software); (iii) re-organizing workstations (like moving a desk to make the workstation accessible); (iv) changing training (like a Braille version of training materials) and assessment materials and systems (like giving extra time to complete); (v) restructuring jobs so that non-essential functions are re-assigned (like employees exchanging post duties); (vi) adjusting working time and leave (like modifying a work schedule to an 8-hour day with breaks; (vii) providing specialized supervision, training and support in the workplace (like hiring a qualified reader or interpreter in office when needed).
The employer is entitled (Code section 6.11) to refuse a disabled employee’s request for a RA if granting it would “impose an unjustifiable hardship on the business of the employer” meaning that the RA should not involve “significant or considerable difficulty or expense”. Deciding whether it might involve “considering, amongst other things, the effectiveness of the accommodation and the extent to which it would seriously disrupt the operation of the business”.
The Labour Court has rules which state that the bigger the employer (the more offices and branches it has, the greater the range of posts etc.), the more difficult it will be to decline a request for a RA. Therefore, the RA that is requested should be realistic, practical and if possible, not too expensive – especially for medium and small employers.
Our next article will focus on reasonable accommodations for different types of disabilities that may result in activity limitations and / or participation restrictions, and how to ask for them.