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Ill health in the Workplace Rights and Obligations

1 © Judith Griessel ILL HEALTH IN THE WORKPLACE – RIGHTS AND OBLIGATIONS Ill health issues in the workplace are not new, but in recent times, issues around the changing working environment, mental health and the repercussions of ‘long covid’ have put this in the spotlight. Employers and employees alike want to know what is ‘fair’ and what their respective rights and obligations are. Introduction Employers are obliged by law to maintain, as far as reasonably practicable, a working environment that is safe and without risk to the health of its employees. On the other hand, there are commercial interests and operational demands that must be met. This is a fine balancing act, especially when an employee’s performance or deliverables are below standard due to something that is not their ‘fault’ or within their control, such as a health issue. Some health conditions are also difficult to diagnose – specifically those around mental health – or to give a prognosis on. Health information is sensitive personal information, so there are also privacy issues to consider. A further complication is that a health condition can in some instances constitute a ‘disability’ and as such is afforded added protection under our anti-discriminatory laws. It is a veritable minefield for employers, especially since our courts have been somewhat ambiguous in this regard. The legal framework The definition of a workplace under the Occupational Health and Safety Act is wide enough to include environments where employees work remotely or from home. Employers’ obligations in this regard are therefore now extended as never before and it cannot simply be a matter of “out of sight, out of mind”. Whilst employers may have to get somewhat creative in terms of fulfilling these duties without invading the privacy of a remote-working employee’s home (this is a topic for another day), the obligation is nevertheless there. South African occupational health and safety standards also specifically acknowledges that an organisation’s duty on workplace safety includes the promotion and protection of both its workers’ physical and mental health. In terms of the Labour Relations Act, workplace ill health situations are generally dealt with as a form of Incapacity. This means that the employee is unable to perform at the required standard, due to ill health or injury. Schedule 8 to the LRA provides guidance for dealing with

2 © Judith Griessel such situations in a fair manner, which involves a participative process between the employer and employee, based on the merits of each particular case. The incapacity process is not a disciplinary process and therefore warnings are not appropriate. It envisages a counselling / consultation process, guided by relevant medical input, during which the employee is entitled to the assistance of a co-worker when engaging with the employer in this regard. • One of the first aspects to be investigated at the start of such a process, is the extent of the employee’s incapacity and whether it is temporary or potentially permanent. There is quite an onus on employers to attempt to manage temporary incapacity as best as possible to assist the employee. Factors to consider include the nature of the job, the period of absence, the seriousness of the illness, the extent to which the employee is capable of performing their duties, etc. and assistance may include temporary re-assignment / adaptation of duties, appointing a temp in the employee’s place, and so on. • Should the employee’s health situation however turn out to be unreasonably long or permanent, the employer could potentially consider dismissal of the employee on the grounds of incapacity. There are however further requirements before such a decision may be taken and reasonable alternatives short of dismissal should be considered by the employer. This may include permanent changes to the employee’s duties / workstation / work circumstances, or suitable alternative work. Dismissal should be a last resort. The employer will further carefully have to consider whether the employee’s (permanent) health condition constitutes a disability in terms of the law. This is important, as employees with disabilities enjoy additional legal protection in terms of reasonable accommodation, job security and anti- discrimination. • Whilst ‘disability’ is not specifically defined, the relevant description to be considered in the South African employment context is found in the Employment Equity Act and the Code of Good Practice on Employment of Persons with Disabilities (“the Code”). Therein people with disabilities are described as “people who have a long-term or recurring physical or mental impairment that substantially limits their prospects of entry into, or advancement in, employment”. The Code then provides wider guidance on what each of these words in the description would mean. It should however be noted that the inherent requirements of the job could exclude a determination of unfair discrimination. • In terms of the Labour Relations Act (s187(1)(f)), disability is also included as a potential ground for automatically unfair dismissal. Reasonable accommodation refers to the “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden on employers to ensure persons with disabilities … enjoy human rights and fundamental freedoms like all other

3 © Judith Griessel employees” in terms of the Code. The idea is therefore to effect such (reasonable and viable) changes to the employee’s position or specific work circumstances to enable him/her to do their job despite the disability. The line between incapacity and disability in the workplace is definitely not (yet) clearly defined in our law – in some instances, our courts have held that a health condition is a disability; in other cases a different approach was followed. This has been particularly problematic in the case of mental health issues/impairments, as discussed further below. Whatever the situation, the principles set out by the Labour Court in Standard Bank of SA v Commission for Conciliation, Mediation and Arbitration & Others (2008) 29 ILJ 1239 (LC), affirm the obligations of employers before dismissing an employee based on his/her ill health, to consider the following: • Whether the employee is able to do his/her work; • To what extent the employee is able to perform his/her duties; • Whether the employee’s current working conditions can be adapted to accommodate the employee’s disabilities; and • If adaptation is not possible, the employer should consider other suitable employment within its organisation, if possible. Mental health As mentioned above, an employer has a statutory duty to provide a safe working environment to all its employees and to promote and protect their physical and mental health. This duty will therefore include rendering assistance to employees suffering from mental health issues. Under the EEA, a mental impairment is a clinically recognised condition or illness that affects a person’s thought process, judgement or emotions. There are of course varying types and degrees of such conditions, which may not be easy to diagnose or treat, and which will need to be uniquely assessed and dealt with by the employer on a case by case basis. Whilst the ill employee may be entitled to reasonable assistance, it does however not mean that the employer should not maintain a broader view of the situation and that its hands are tied once an employee has been diagnosed. Employees suffering from (some) mental health issues can directly or indirectly affect broader workplace morale, work efficiencies, team work, customer service, etc. It can also have a profound impact on other employees who might witness or be aware of ‘incidents’ involving a co-worker, that are not easy to understand but that can be quite upsetting. In environments such as schools, there is also the consideration of how such incidents might impact on impressionable young minds. The employer therefore has to approach mental health situations holistically and carefully, balancing the interests of all its employees as well as its business interests. This is no easy

4 © Judith Griessel task, especially at this particular time, when statistics show an unprecedented upsurge in depression, anxiety and a number of other very grey areas in respect of mental health and wellbeing of people everywhere. Some employees have also been known to use this as a convenient excuse for behavioural issues and lack of performance, when there is no clear nexus between the illness and the behaviour or attitude of the employee. Whilst the Labour Appeal Court has emphasised on a number of occasions that employers have a duty to deal with depression and other mental health issues sympathetically, it has recognised that there are other interests at play and that the mere fact that someone suffers from such an condition, does not mean that it should be viewed in isolation. (See for example Legal Aid South Africa v Jansen (CA3/2019) [2020] ZALAC 37, where the Court considered the interplay between the employee’s conduct and his depression, and whether his dismissal amounted to an automatically unfair dismissal / unfair discrimination.) In New Way Motors & Diesel Engineering (Pty) Ltd v Marsland (2009) 30 ILJ (LAC) the employer took a different approach: When the employee returned to work after a nervous breakdown due to personal circumstances, he was effectively excluded from his job functions on the basis of his mental health problem to the point where he resigned and claimed an automatically unfair constructive dismissal. The court found that the employer’s treatment of him impacted adversely on his dignity and that it amounted to unfair discrimination. ‘Long Covid’ The US Centre for Disease Prevention and Control describes post-COVID conditions as a wide range of new, returning or ongoing health problems that people can experience four or more weeks after they have been infected. This may include severe fatigue, shortness of breath, coughing, chest pain, joint pain or swelling, difficulty concentrating and depression. These symptoms differ from patient to patient and according to the SA National Institute for Communicable Diseases, this makes it difficult for health care professionals to predict when a person’s symptoms will improve. This poses a problem for employers who have to plan their operations, as well as appropriate assistance to the employee, and who are eager for some type of prognosis to enable them to do to. As mentioned earlier, the factors highlighted in Schedule 8 of the LRA will have to be considered in each case to determine reasonableness – e.g. the nature of the position, whether a temporary replacement can be appointed, how to deal with sick leave and absences, etc. It would not be dissimilar to dealing with an employee suffering from another debilitating disease such as cancer, which is often also difficult to plan around in terms of the employee’s ability to work whilst being treated. If the employee is not able to perform adequately within a reasonable period of time, the incapacity may be considered permanent, in which case the employer will need to determine whether reasonable accommodation is possible or whether dismissal is appropriate. Some

5 © Judith Griessel employers may have insurance benefits for staff who are temporarily unable to work – however, they should investigate the insurer’s approach to (temporary) disability cover offered to employees in case of post-Covid complications. In practice - Recommended Process 1. Before an employer decides to embark on a process of any kind in respect of unsatisfactory performance of an employee, the reasons for the employee’s (perceived) under-performance should be thoroughly investigated. Issues such as lack of resources, being short-staffed, lack of management communication, lack of skills, or simply misconduct scenarios, should be eliminated first. The fact that the employer is aware of a health issue, does not automatically mean that this is the cause of the problem. 2. The employer should also have / conduct a proper analysis of the expected performance standards for this employee, whether these are reasonable, and to what extent this particular employee’s output is below that standard or which aspects are specifically of concern. 3. Once the employer is ready to engage with the employee in this regard, the procedural guidelines in Schedule 8 of the LRA should be followed. The employee may be assisted by a co-worker throughout the process and it should be a participative and interactive process where the employee must be given the opportunity to also make proposals. The aim is to try and find a resolution – whether temporary or permanent. (It is also recommended to keep proper minutes / recordings of the process for the protection of both parties and in case of litigation that might follow.) 4. The employer should alert the employee to the aspects of concern that it has identified and determine the probable reasons for this. For the purpose of this article, the process as described further will focus on ill health as the reason for the employee’s under-performance. Bear in mind that the employer’s concerns may also include persistent / intermittent absenteeism that impacts on the employee’s work efficiency and his/her ability to deliver, meet deadlines, etc. It should be made clear to the employee that, although the performance problems may not be their fault, it still has an impact on the workplace, business delivery and other employees, and that this could potentially impact on his/her continued employment if the situation remains unresolved. 5. If the reason for the employee’s difficulties seems likely to be related to ill health or injury, a medical report is the starting point. • Remember that the aim with obtaining medical input is not to know what the employee’s medical condition is, but if/how it impacts on the ability of the employee to perform their duties at the required standard. It is therefore not necessary to obtain

6 © Judith Griessel private medical information (unless the employee consents), but the medical practitioner should be in a position that he/she is able to assess and report to the employer in respect of the employee’s ability to do their job or parts of it; to give a prognosis in terms of the period involved; and also to advise in terms of possible assistance to the employee to manage the condition. • With that in mind, it is recommended that the doctor should be briefed in detail by the employer when asked for a report and prognosis. Explain the duties of the employee and the demands of the job (physical, emotional, psychological, safety requirements) so that the doctor can make an informed assessment of the ability of the employee to perform those duties and to formulate a prognosis. • The employer needs to determine whether the employee’s health condition is temporary or permanent / chronic – this is with a view to operational planning. • Further / subsequent medical reports would likely be necessary as the process continues. • The employer is also entitled to appoint a doctor of its choice (and possibly at its cost) to do an examination, or to obtain a second opinion. • If the employee refuses to cooperate with a reasonable investigation in this regard, he/she should be informed that this process is aimed at assisting them and to find a workable solution if possible – the employer cannot assist if the employee is uncooperative, which means that the options going forward become severely limited. [The employer may at this point refer the matter to its insurers for temporary disability insurance cover, if applicable. However, if the employee and employer decide to apply for disability ‘boarding’ for the employee, it is recommended to run this incapacity process parallel to any pending disability application. These applications can take months and may not necessarily be successful – which means that precious time towards finding a resolution might have been lost if the application is rejected.] 6. There should be regularly scheduled follow-up meetings with the employee (and his/her representative) to keep the process on track. • If the employee is unable to work for a time, the employer should do its best to manage the process on a temporary basis, which may include a temporary appointment to relieve the employee. • If the employee is able to continue working, discuss and decide on action plans between meetings, with relevant medical input, to address particular issues of concern and to provide appropriate support and assistance. Determine specific steps and/or interventions to take place within a specified time period. An assessment by an Occupational Therapist could also be helpful.

7 © Judith Griessel 7. Determine a reasonable time to implement these action plans and for the employee to meet expected performance standards / improved attendance / improved health. The period will depend on the nature of the job and the contents of the action plan. (If the employee has a health condition that is permanent and that impacts on his/her performance / attendance at work, there may not be cause for a long counselling process to look for improvement, but rather to look into possible alternatives.) 8. If the employee remains unable to fulfil his/her duties at the required standard despite these interventions (small improvements made during this process may not be enough or sustainable), the employer must consider reasonable alternatives to avoid dismissal – again with the input of the employee. Alternatives may include: • A different position to suit the capabilities of the employee. • Adapting the employee’s work circumstances / workstation to reasonably accommodate the incapacity. • Adapting the employee’s duties. Keep in mind that if the employee’s illness potentially constitutes a disability, the obligation to consider reasonable accommodation is particularly important and the employer must be able to provide solid evidence that all viable alternatives have been duly considered. If an alternative position is available but at a lower salary or different terms and conditions, the employee’s agreement to accept the job on those terms is necessary – however failure to accept this may mean that dismissal is the only remaining option. 9. If no alternative is available or agreed to by the employee, a final decision must be made about the continued employment of the employee. Although a formal meeting / ‘hearing’ is not required, it is recommended. This should however not be confused with a disciplinary hearing. The employee has the right to make final representations and may be assisted by a co-worker. © Judith Griessel September 2021 __________________________________________________________________________________ www.griesselconsulting.co.za