Reasonable Accommodation

A NEW NATIONAL STRATEGIC FRAMEWORK PROVIDES DIRECTION

By: Dr Laurentia Truter

Persons with disabilities do not always have access to appropriate,

affordable, or adequately timed reasonable accommodation

support measures. Even where accommodation measures are

in place, they are often unsuitable or fail to address the particular

barrier the person is experiencing, resulting in unfair discrimination.

The reasonable accommodation measure that a person with a

disability may require varies and is often related to the stage of life

or circumstances they find themselves in. Measures must thus

be tailor-made in line with, for example, the person’s age, gender,

culture, and the severity of their impairment.

Although it may sound simple, the need for, the cost, and the return

on investment for the individual and society of putting effective

reasonable accommodation measures in place have passed by

many organisations. Many employers, in particular, find the concept

of reasonable accommodation challenging to implement in the

workplace, even though it is intrinsically necessary if one wants to

realise equal rights for persons with disabilities.

The Department of Women, Youth and Persons with Disabilities

recently published the National Strategic Framework on Reasonable

Accommodation for Persons with Disabilities (the Framework) to

assist in the promotion of the rights of persons with disabilities. This

article provides an overview of this new Framework.

What is the scope and purpose

of this new Framework?

It applies to both the public and private sectors, including civil

society, regardless of the size of an operation. It acts as a

guideline at this point, supporting other existing legislation that

makes the provision of reasonable accommodation measures

compulsory, such as the Promotion of Equality and the Prevention

of Unfair Discrimination Act, 2000 (PEPUDA) and the Employment

Equity Act, 1998 (EEA). The Framework may well be published

as Regulations under PEPUDA in the foreseeable future, giving

it legislative authority. South Africa foresees disability legislation;

thus, the Framework will serve as a guiding document for any

such disability legislation drafted. Employers and businesses

will do well to acquaint themselves with the principles and their

obligations as so-called ‘duty bearers’.

In terms of the EEA, reasonable accommodation applies to

all Designated Groups, namely ‘Black’ People, women, and

persons with disabilities. The Framework, however, focuses

specifically on persons with disabilities. Its objectives include

cementing reasonable accommodation as a fundamental human

right of persons with disabilities, necessary to enforce their dignity,

respect and equal opportunities. According to the Framework,

disability discrimination includes the denial of reasonable

accommodation support, where required.

When must reasonable accommodation

measures be in place?

The legal obligation to make reasonable accommodation available

arises when a person with a disability voluntarily discloses a

disability-related accommodation need or when such a need is

reasonably self-evident. Persons with hidden disabilities have the

right to keep their disability status confidential, but cannot then

expect to benefit from reasonable accommodation measures.

Who qualifies for reasonable accommodation?

Three basic criteria, based on disability, determine the necessity

for reasonable accommodation:

1 The person must have an impairment that may be physical,

sensory, neurological, intellectual, psychosocial in nature or a

combination of these.

2 The impairment must be long-term, recurring or episodic,

including progressive conditions. Long-term means the

impairment is likely to last for over 12 months or life.

3 The impairment must be substantially limiting in nature; in

other words, restricting a person’s ability to participate

and/or limiting daily activities.

One will thus need to consider the nature, duration and all

the effects of the impairment and whether it limits a person’s

ability to perform essential functions of a job or daily activities

independently. The Framework corresponds with the definition

of persons with disabilities as set out in the EEA. However,

whereas the EEA requires all three aspects of the criteria to

be present to qualify as part of this Designated Group, the

Framework expressly covers temporary disabilities under its

scope, as well as perceived disabilities. Persons with disabilities

include ‘people who have perceived and actual physical,

psychosocial, intellectual, neurological and sensory impairments

which, as a result of various attitudinal, communication, physical

and information barriers, are hindered in participating fully and

effectively in society on an equal basis’, in line with the social

model of disability.

Is a person’s disability status protected?

Information relating to disability status and reasonable

accommodation needs are confidential and must be protected.

It should only be accessible and shared on a need-to-know

basis to ensure non-discrimination and/or if objective safety

concerns exist related to a specific individual or accommodation

need. When gathering information from elsewhere or disclosing

information related to a person with a disability to anyone else,

the person’s explicit and informed written consent is necessary.

So as not to fall foul of the law, employers and other entities

need to consider the provisions of the Protection of Personal

Information Act, 2013 (POPIA), which classifies health and

disability-related information as special personal information

worthy of additional protection.

What is “reasonable accommodation”?

Reasonable accommodation refers to ‘necessary and

appropriate modifications and adjustments, including assistive

devices and technology that assure persons with disabilities’

participate on an equal basis with others in all human rights

and fundamental freedoms’. It includes measures to make the

physical environment accessible, provide access to information

and communication, and accommodate specific sensory

requirements such as lights, noise and spatial stimuli to improve

the independence of persons with disabilities. Thus it will

provide access and participation to quality education and work.

When considering the need and type of any reasonable

accommodation, Employers must give regard to the person’s

specific impairment and the particular daily activity, task or

the inherent requirement of the job at hand. It must assess

any attitudinal or environmental barriers that may exist and

undertake their removal.

According to the Framework, there is an inextricable link

between reasonable accommodation, universal access and

universal design principles. Universal access entails the

removal of cultural, physical, social and other barriers that

exclude persons with disabilities. In contrast, universal design

involves ‘the design of products, environments, programmes

and services from the very beginning to be used by all to the

greatest extent possible without the need for adaptation or

specialised design’.

What are the categories and types of

reasonable accommodation measures

identified in the Framework?

The Framework distinguishes the differences between

reasonable accommodation as:

No-tech These measures include allowing flexi-time work

or additional preparation time, as well as policy

and protocol adjustments.

Low-tech These measures are technologically

unsophisticated or straightforward, for example,

replacing a doorknob with an accessible door

handle or providing a magnifier to a person with

a sight impairment.

High-tech These measures require advanced or

sophisticated devices, for example, providing

screen reading software with synthesised

speech to someone with a visual or learning

disability, as well as other assistive devices.

Live

assistance

This includes making personal assistants

available such as guides, lip speakers, sign

language interpreters, note-takers or the

provision of guide or service animals

Can an employer deny reasonable

accommodation?

An employer can deny a request for reasonable accommodation

if it causes ‘unjustifiable hardship’; however, evidence of this

is necessary. Unjustifiable hardship is an action that requires

significant or considerable difficulty or expense. It involves

considering, amongst others, ‘the effectiveness and efficiency

of the reasonable accommodation and the extent to which it

would seriously disrupt the operation of a business or create

a disadvantage’. Expense on its own is not an excuse as an

absolute defence against providing reasonable accommodation.

Depending on an organisation’s size and gross income, the type

of measure, and the extent to which an organisation provides

it, may differ. Other considerations include the impact of failing

to provide accommodation for the person with the disability, the

systemic patterns of inequality in society and the furtherance of

constitutional rights. Whether the defence of unjustifiable hardship

will be successful depends on the merits of each case.

What are the responsibilities of the so-called

‘duty bearers’ in terms of the Framework?

From reading the Framework, it seems that it targets

organisations in the public and private sector who are ‘providers

of services’, whereby access to their services must be readily

available. At the same time, it includes references to employers

and related labour legislation. It states that the private sector must

provide access to everyone concerning its ‘environment, products

and services’ equitably. Further clarification is probably necessary,

but it is safe to assume that reasonable accommodation

measures cannot be limited to strict service rendering only.

General responsibilities include:

> A plan to implement reasonable accommodation(s) that

ensures everyone can access their environment, products,

and services equitably, without unfair discrimination.

> Providing persons with disabilities with information on the

reasonable accommodation support available and how they

can access it.

> Bearing the cost of any functional assessment to determine

the most feasible measure to be put in place, if necessary.

> Engaging with professionals, including social workers

and medical service personnel. However, this relates to

obtaining private information to make an informed decision

with written consent.

> Ensuring that the time frame between identifying the type of

support a person requests and providing it is minimal.

> Providing written reasons for declining a request for

reasonable accommodation or an assistive device.

Organisations must retain records of such.

> Following declining a request for reasonable

accommodation, the person with a disability must have the

opportunity to make representations to an Accounting Officer

or a similar such person.

“Reasonable accommodation

refers to necessary and

appropriate modifications

and adjustments.”

Making budgeting for reasonable accommodation expenses

a normal part of doing business.

> Putting effective monitoring and evaluation

processes in place to ensure the implementation of

reasonable accommodation measures with accountability

for non-delivery.

> Reporting on reasonable accommodation support as part

of standard business management processes. Annual

reports, for example, should include feedback about

measures put in place.

In particular, all public and private sector institutions according

to the Framework must:

> Develop an application guideline with qualification criteria for

reasonable accommodation support as an integral part of

their standard operating procedures.

> Keep an updated database of applications for reasonable

accommodation support and their outcomes.

> Put in place relevant and appropriate service level

agreements with service providers rendering reasonable

accommodation support services.

> Provide professional assessments where necessary to

determine and cater for the exact requirements of persons

with disabilities.

> Work in collaboration with organisations supporting persons

with disabilities to assure effective service delivery, economic

empowerment and employment opportunities for persons

with disabilities.

What is a Universal Design Access Plan?

In reference, the Framework alludes to Universal Design Access

Plans (UDAP). The mandate for such plans stems from PEPUDA -

Chapter 5, which provides for the drafting and implementation of

‘equality plans’. Firstly, organisations must analyse their services

and/or products and identify barriers to non-compliance with

national standards. From there, they must design and implement

an equality plan to address the areas of non-compliance, which

must include reasonable accommodation measures. UDAPs will

demonstrate progressive implementation of universally accessible

services, including reasonable accommodation support to

employees and customers or clients. Within the employment

context, some of the possible topics for inclusion into a UDAP are

how the employer will:

Address the needs of persons with different types of

disabilities;

> Achieve employment equity targets on disability and

reasonable accommodation;

> Procure, utilise, maintain, transfer and dispose of assistive

devices;

> Fairly recruit and select people with disabilities for

employment;

> Ensure non-discrimination in job profiles and specifications;

> Provide disability sensitisation and awareness for its

workforce;

> Ensure training opportunities and equal career

advancement for employees with disabilities; and

> Fairly terminate employment in cases of incapacitation of

disabled and non-disabled employees.

What avenues are available to an aggrieved

person with a disability?

Persons with disabilities have access to the National Consumer

Commission, a relevant service Ombudsman, the CCMA in

the context of an employment relationship, the South African

Human Rights Commission and the Equality Court. Each is

applicable according to the circumstance at hand, where a

public or private entity denied a request to provide a reasonable

accommodation measure or if a measure is inadequate for

addressing the need or removing an identified barrier. Case

law concerning physical access in the built environment

demonstrates that the courts will protect persons with

disabilities as so-called ‘rights holders’, including determining

that the non-provision of reasonable accommodation

constitutes unfair discrimination. Examples of these judgements

will feature in later issues of TFM Magazine.

In conclusion

The newly published Framework summarises various important

principles aimed at securing an open, inclusive and accessible

society for persons with disabilities by providing adequate

and effective reasonable accommodation measures, which

is laudable and necessary. It includes helpful information and

guidance. However, whether it will bring about a change of

heart and mind, thus increase reasonable accommodation

measures, remains to be seen. It is conceivable that many

organisations will see the drafting and implementation of

UDAPs as yet another administrative duty placed on already

burdened entities in a poor economic climate, thereby

missing an opportunity to pursue and realise disability equity

in a practical manner.