How to enable the disabled – complying with the B-BBEE Act

How to enable the disabled – complying with the B-BBEE Act

How to enable the disabled – complying with the B-BBEE Act

What is disability? Is a disabled person merely someone with a physical or mental impairment? Most certainly not!

Disabilities range from moderate to severe and may be of a temporary or permanent nature.

South Africa is the only country in the world with a Constitution that recognises the rights of people with disabilities. In addition, the Employment Equity Act and the Equality Act endorse the rights of people with disabilities to live and work in South Africa. There is no list indicating whether or not a condition or illness constitutes a disability because people experience such conditions differently. For the purpose of this blog, we will look at the definition of disability and qualification criteria in line with the B-BBEE Act.

Disability and the B-BBEE Act

The Employment Equity Act 55 of 1998 (EE Act) and the Broad-Based Black Economic Empowerment Act 53 of 2003 (B-BBEE Act) encourages certain businesses to employ people with disabilities and to set targets for the employment of black people with disabilities. Businesses that comply are rewarded with B-BBEE points, and in return, offer real benefits and opportunities for persons living with disabilities.

Without considering the complexities of B-BBEE and simply looking at the generic scorecard of the B-BBEE Act, focusing on employment equity and skills development, the targets to be achieved are notable with reference to black people with disabilities.

  • For purposes of employment equity in terms of the B-BBEE Act, the business can earn two B-BBEE points if 2% of all its employees are black people with disabilities.
  • For skills development in terms of the B-BBEE Act, the skills development expenditure on learning programmes, as specified for black employees with disabilities as a percentage of the leviable amount, is 0,3%. Four B-BBEE points can be earned for achieving these targets, which often makes a significant difference to the B-BBEE level of some companies.

Defining a condition or illness as a disability

“Persons with disabilities” is defined in the Employment Equity Act 5 of 1998 as people who have a long-term or recurring impairment, including sensory or mental impairment, which substantially limits their prospect of entry into or advancement in employment.

What qualifies as a disability?

  • There must be an impairment

An impairment may be either physical or mental, or a combination of both. A 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, as well as loss of or damage to muscles, nerves, skin or bones. Such impairments result in lack of mobility and difficulties in performing daily activities.

A mental impairment is a clinically recognised condition or illness that affects a person’s thought processes, judgement or emotions. This includes intellectual, emotional and learning disabilities. A mental illness managed by therapy or medication is not necessarily disabling; however, cognitive, psychiatric of learning disabilities, depression, severe head trauma and undiagnosed or unmanaged conditions such as bipolar disorder or schizophrenia, can be disabling.

Sensory disabilities include visual and hearing disabilities. Epilepsy and diabetes are common “invisible” disabilities. Generally, diabetes, if well managed, would not be considered a disability as per the Employment Equity Act definition. However, it could result in other conditions which may be considered a disability. For example, long-term poorly controlled diabetes often results in renal failure, glaucoma, strokes and lower-limb amputation. Again, each case should be considered separately.

  • The impairment must be of a long-term or recurring nature

“Long-term” means the impairment has lasted for or is likely to persist for at least 12 months. “Recurring” means the impairment is likely to occur again and, when it does, would be substantially limiting. The condition can go away for a period and return, but the person is never cured. 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, for example, a person with cancer, tuberculosis or HIV would not be covered under the EE Act until the symptoms substantially limit the person’s ability to perform their job.

  • The impairment must be substantially limiting

An impairment is substantially limiting if its nature, duration or effects substantially limit a person’s ability to perform essential functions of the job for which he/she is being considered. If the effects of the physical and/or mental impairment are not substantially limiting although such impairment is of a long-term or recurring nature, then the person is not covered under the EE Act.

In conclusion

Employers are encouraged to seek the assistance and advice of technical experts to determine whether an impairment is substantially limiting. Alternatively, an applicant or employee may be able to provide information that is deemed sufficient for this purpose, such as a doctor’s report or a completed EEA1 Form by a medical doctor. Such documentary evidence would also be required to earn points on the B-BBEE scorecard for employing and training disabled black persons.

SERR Synergy assists businesses to implement viable B-BBEE initiatives and ensure alignment of initiatives with the legal requirements of the B-BBEE Codes and to avoid any possible risks associated with fronting or any other unethical business practices that may cause possible reputational damage to an enterprise.

About the Author: Dalena van der Merwe is a Project Manager who joined SERR Synergy in July 2018 in the Pretoria B-BBEE Department. She obtained her LLB degree from the University of Pretoria. Dalena is an admitted Attorney, Notary and Conveyancer of the High Court with 13 years’ legal experience.

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