Implementing the EE Act's new Code of Good Practice on Disability

Implementing the EE Act's new Code of Good Practice on Disability

By Peter Strasheim who can be contacted on 083 – 6023456, or 011 486-0478 3456, and by email at stras@iafrica.com

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1. Introduction

The EE Act's new Disability Code is out. Jeff Sacht chatted with Peter Strasheim, labour attorney, HRD and disability law specialist who did the Code's legal drafting.

Employers want to know what the Code is about and how to start planning a compliance strategy. Peter agreed to share his recommendations and how they work with employers

A new code of good practice that its drafters say can reduce employment costs for employers while it promotes fair practices for employees gets our attention.

But is that claim realistic: this new Code comes from the Department of Labour, and is about employment equity and disability? Definitely, says Peter Strasheim, legal drafting consultant, who answered my questions about the Code, and cited the positive outcomes major employers he works with have already had.

2. Interview

Q: What is this new Code about?

Promulgated under the EE Act, it’s called the "Code of Good Practice on the Employment of People with Disabilities". It came into operation in August last year. It is intended as a guide for employers for complying with the disability-related requirements of the EE Act - firstly to identify and remove unfair discrimination, and secondly to promote affirmative action.

The Code has been drafted to present employers a business case and a compliance case for promoting equity and implementing change. As a result, employers as well as people with disabilities will both benefit. So Peter emphasises that "it makes clear compliance sense as well as business sense to start developing a strategy for aligning with the Code, and for building the steps into overall EE planning and reporting". More on this later.

Q: Why is the Code important?

The Code introduces new (1) fair labour practices and (2) equal opportunity rights for employees with disabilities into SA employment law. The LRA's "Code of Good Practice: Dismissal" contains ill health and injury termination provisions (more on this below) - but confined to dismissal it only applies at the end of the employment cycle.

The LRA - and the courts - never advanced disabled job applicants and employees' rights over the full employment cycle, or in the workplace itself. Compounding this, the rights and guidelines around the definition, reasonable accommodation, training and retention had also never been addressed.

The new Code was promulgated by the Minister to promote these rights and to address the gaps. It will impact typical disability-related workplace policy and practice, specifically in the areas of recruitment and selection, medical testing, safety, industrial/employee relations and employee benefits. The result is a need to re-align policy in terms of a planned change strategy.

Q: What does the Code actually cover?

The Code gives guidelines for how to start, what to do and who could do it, when promoting (1) fair labour practices and (2) equal opportunity rights for employees with disabilities. It also identifies the important stages in the employment cycle and the key process that practitioners can review for discrimination, and if necessary adjust. So it goes well beyond quantitative affirmative action hiring, reporting and monitoring.

Q: Which employment practices and practitioners are affected?

For years, typical practice in relation to disabled employees was often to terminate via disability benefits, or failing that, to dismiss for ill health or injury under the LRA. For employees falling within the EE Act's definition of disability, this approach is likely to amount to unfair discrimination or an unfair labour practice - the EE Act's right to non-discrimination, "reasonable accommodation", "affirmative action" and "retention" apply.

Against this background, the Disability Code had to introduce good practice guidelines, using comparable international precedents and best practices, to guide practitioners to promote disability equity and fair labour practices. So the Code offers detailed guidelines for practitioners in the following fields: recruitment, selection and placement; medical and psychological testing; safety risk; retirement funds and insurers providing disability benefit schemes.

Q: What case can you make out for employers to comply?

While drafting, the debate on the impact of labour law on productivity, employment levels and costs was on. We sought to produce a Code that would make business sense to implement and would deliver equitable outcomes. At the time ILO published its new "Disability Management" code, which gives guidelines for retention, which in turn results in cost reduction. We were able to incorporate both into the SA Code: the EE Act's "disability equity" requirements and the ILO's "disability management" guidelines. This offers employers a compliance case for change, and a business case for change.

The compliance case for change looks briefly like this:

>> Including disability-related steps in the next October Equity report

>> Avoiding the risk of adverse CCMA and Labour Court judgements

>> Doing an effective profile of the workforce

>> Getting clarity on what the definition means and who falls within the scope of the definition

>> Understanding the concept and right to "reasonable accommodation".

The business case for change is cost reduction and productivity improvement, based on losses involved in the way disability and incapacity are typically managed. The traditional model - 'sick leave - WCA - disability benefits - dismissal' - is now a risk under the new Code. That model has never been financially sound, and it raises costs and risks. Now there are new guidelines for improving typical practice here, and for reducing costs by:

>> Managing incapacity and disability more effectively

>> Regulating and controlling sick absence more effectively

>> Setting new medical certificate criteria for doctors

>> Reducing disability benefit premium costs, as well as WCA levies

>> Continuously improving by benchmarking against Code practices.

Q: How are representation levels established: is it a "numbers game"?

Race equity and gender equity may often get managed as a "numbers game". The emphasis is on increasing designated group member representation, which has a quantitative emphasis only. Given the disability-related requirements in the Act and the Code's guidelines, we asked Peter Strasheim whether the same approach would be wise.

"Absolutely not", he says, and gives three main reasons:

"First, an exclusively quantitative approach will prevent the company getting to all the qualitative benefits - cost-reduction for employers and equitable practices for people with disabilities. We strongly recommend addressing the quantitative, qualitative, cost-saving and HIV/AIDS elements in a co-ordinated, balanced strategy"

Second, most employers don't yet understand the Act's definition of "people with disabilities", or who will and wont fall within it for employment equity representation purposes;

Finally, an employee with a disability should be placed in a company which has a Reasonable Accommodations Policy in place, and in a work environment which is receptive and not discriminatory".

Q: Who's disabled, and which disabilities are within in the definition?

The Act gives the definition of "people with disabilities, and the Code has the guidelines for interpreting it. Actually the definition is not about disability but about "impairment", and whether the impairment "substantially limits". But managers (and HR) most typically think of disability, and have a mental image of blind, deaf and wheelchair-using people. These stereotypes affect strategy. So when an unplanned Workforce Disability Profile gets done, usually only employees with visible disabilities respond, resulting in a representation level around 1 -2 %.

Low representivity levels suggest an ineffective Workforce Profile. An effective profiling process should produce a representation level of around 7 - 8%. This is because of the reality that the most frequent "substantially limiting" impairment is musculo-skeletal (back-related), followed by cardiological (heart-related) and mental illness. Then about 3 - 5% of employees live with non-visible mental illnesses, and possibly more with HIV / AIDS. In terms of rights, AIDS-illness, as with the other life-threatening diseases will normally also be a disability.

An effective Workforce Profile process and outcome is an incredibly beneficial exercise for all parties concerned. Although a quantitative measure, it delivers important qualitative benefits - it builds employee confidence that the employer is committed to equity for disabled staff, it helps medical and safety practitioners, it will promote confidential HIV/AIDS disclosure by building confidence and trust, and it assists risk benefit insurers. Workforce Profile failure is usually due to (1) the Profile's purpose being unclear (2) inadequate prior communication to staff of the purpose and advantages of participation (3) absence of prior or concurrent training on the definition.

Q: How should the implementation process happen?

Based on work with clients, Peter believes the implementation process should be based on planned and sequenced organisational transformation and change. In reality, present policy on employees with disabilities will mirror the organisational culture toward disabled employees - and that is in turn the outcome of prevailing organisational attitudes and knowledge about disability.

He recommends that the change interventions need to be planned and timeously communicated to line by the CEO or credible personnel. The reasons for change can be formulated around the compliance case and business case. The change process and the transformational process - with their associated interventions - need to be developed against a realistic timeframe, with a project team and budget. Each intervention may be built into the next EE Plan and report.

Each step or intervention (quantitative, qualitative or cost reducing) in the change and transformation plan should be managed in a co-ordinated and sequenced way, using conventional human resources development approaches. Role and responsibility matrixes will be key, together with training and development strategies to cost-effectively platform the new competency or skill, and to build on them and cascade them into the organisation.

Q: Where should implementation start?

Peter sketched their empowerment consultancy's approach. They support clients to implement the change process at their own pace, with advice on planning and priorities, setting up teams, draft policy and procedures, training packages, trainer-training, timing and other tools. Their objective is to make clients independent of support, by helping develop and install competencies and know-how for compliance and cost saving. They recommend following these four phases:

Firstly the quantitative elements - the statutory audit of policy and procedures and practices for discrimination, then a communication strategy, followed by sensitisation events on the definition, and lastly the Workforce Disability Profile.

Secondly, the qualitative elements, including installing a Reasonable Accommodation Policy, adapting or supplementing existing staff and practitioner policies dealing with processes in the employment cycle and distinguishing LRA and EE Act processes and interventions.

Thirdly the cost-saving elements that promote equitable outcomes, which include appropriate (dis)ability management procedures and process-management guidelines, as well as the related interventions associated with sick absence, medical practitioner liaison, WCA, medical boarding, disability benefit administration, and others.

Finally the HIV/AIDS related elements. Based on the Code and other legislation, this is a strategic change process using the Code, in interaction with other laws. Outcomes enable employees living with AIDS-illness to maintain confidentially, enjoy financial security and constitutional dignity - while productivity implications are taken account of. The process relies on reasonable accommodation, a collective agreement, benefit and actuarial reallocations based on the applicable benefit structure. Constitutional dignity, financial interests and employer productivity requirements are all attained.

Q: Can employers use brokers / insurers to do this for them?

Brokers and insurers assess disability claims and some also offer a claims management service. So can employers use these service providers to manage the requirements of the Disability Code for them?

This is very unlikely. The Disability Code is not about disability claims, and these service providers are normally too far removed form the workplace to be able to respond or advise at the frequency required. They also usually only act when a disability claim happens. They also do not offer a disability equity, labour law or medical service. In effect they offer a "managed disability claimants" service, to redeploy the employee as an alternative to claiming benefits, or return the employee from benefits to the workplace. A such they do not offer a strategic multi-disciplinary disability equity and disability management

Q: Can incapacity dismissal be used as an alternative?

As discussed above, illness and injury based termination under the LRA's "Code of Good Practice: Dismissal" was the method for terminating disabled employees who had been declined a WCA pension or the disability benefit available. This will now be counter-productive since those employees have a statutory right to "retention" and "reasonable accommodation" under the EE Act, and need to be retained to maintain workplace representivity levels.

Incapacity-based dismissal processes will need to be reviewed. Employees with an impairment that brings them within the EE Act's definition of disability, have a statutory right to "reasonable accommodation" and "retention". Therefore automatically following the LRA Code and dismissing for incapacity will involve risk. Dismissal without a prior sustained effort to "retain" by identifying and attempting statutory "reasonable accommodations" is likely to be determined as unfair discrimination or an unfair labour practice.

Q: What about concerns and attitudes?

Most employers and employees know very little about impairment or disability, and therefore who is in or outside the definition. Many will be uncertain of the abilities and contributions of employees and job applicants with disabilities. Legitimate concerns may include: What about safety? What is a reasonable accommodation? What do accommodations cost? What's reasonable and what's not? Can disabled employees work productively? Is the person ill or sick? What do I do if something happens?

So like HIV / AIDS, concerns and attitudes will be understandable and legitimate, being based on an absence of information, ignorance about a disability or just misconceptions and fears.