On 15 June 2023, the Department of Employment and Labour published the Draft Rehabilitation, Reintegration and Return-to-Work Regulations in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 ("Draft Regulations") for public comment. The Draft Regulations seek to regulate the rehabilitation, reintegration, return-to-work or return to the labour market of occupationally injured or diseased employees. To achieve this, the Draft Regulations oblige employers, the Compensation Fund and Licensees of the Compensation Fund, to provide consenting employees, who have suffered a disability, as a result of occupational injury or disease, access to rehabilitation programmes to assist in restoring their health, independence and participation in the labour market and society.
The Draft Regulations define an "injured employee" as one whose prospects of success in securing, returning to, retaining and advancing in their current employment are substantially reduced as a result of a severe physical impairment which was sustained at work and for which liability is accepted by the Compensation Fund.
The Draft Regulations use the term "injured employees" and "occupationally injured or diseased employees" interchangeably.
Obligations of the employer in terms of the Draft Regulations
The Draft Regulations introduce obligations on employers to facilitate access to rehabilitation for occupationally injured or diseased employees to be reintegrated back into the workplace. Some of these obligations are:
- develop and implement a workplace rehabilitation and return-to-work policy and programme incompliance with the Draft Regulations;
- establish and maintain a system of rehabilitation and return-to-work reporting;
- keep rehabilitation and return-to-work reports for a period not less than 40 years;
- organise vocational guidance, skills development initiatives, reasonable accommodation, and placement;
- provide occupationally injured or diseased employees with support and assistance during rehabilitation, treatment or assessment;
- integrate workplace rehabilitation and return-to work cases into relevant structures to implement and monitor the programme in the workplace;
- provide reasonable, transitional or temporary work to allow the injured employee to work safely in the return-to-work process;
- not to:
- dismiss an occupationally injured or diseased employee based on incapacity;
- reduce an occupationally injured or diseased employee's remuneration or alter the terms and conditions of their employment to less favourable terms,
without reporting this to the Chief Inspector and the Compensation Fund in writing and providing reasons; and
- notify the Compensation Commissioner if the employee resumes their duties, or if the employer was unable to retain the employee despite all efforts made to preserve the employment of the employee.
The current law on managing incapacity
An employee may be fairly dismissed for incapacity related to ill health or injury. The Code of Good Practice: Dismissals, Schedule 8 of the Labour Relations Act, 1995 ("Code of Good Practice"), amongst other things, provides guidelines for dealing with employees that are incapacitated because of illness or injury.
Incapacity on the grounds of ill health may be temporary or permanent. Prior to dismissing an employee on such grounds, an employer must investigate the nature and extent of the incapacity. If the period of time in which the employee is likely to be absent is unreasonably long in the circumstances, then the employer should investigate all the possible alternatives short of dismissal. Employers must consider the following factors when determining possible alternatives:
- the nature of the job;
- the period of absence;
- the seriousness of the illness;
- the possibility of securing a temporary replacement for the ill employee; and
- the possibility of securing the employee alternative employment or adapting the duties or work circumstances of the employee.
If the employee is unlikely to be able to return to work within a reasonable period of time and there is no reasonable alternative to dismissal, the employer may then, after considering any representations by the employee, dismiss the employee for reasons of incapacity.
Item 10(4) of the Code of Good Practice requires particular consideration to be given to employees who are injured at work, or who are incapacitated by work related illness. South African courts have held that the duty on the employer to accommodate the incapacity of the employee is more onerous in these circumstances.
Impact of the Draft Regulations on managing incapacity
If the Draft Regulations are passed as is, employers will have to adapt their incapacity policies and procedures, to:
- create a rehabilitation programme in an effort to return the employee to work; and
- facilitate the rehabilitation of employees that have suffered an occupational injury or disease resulting in physical impairment.
Therefore, employers may not dismiss or alter the terms and conditions of employment of occupationally injured or diseased employees without first facilitating the rehabilitation, reintegration and return-to-work and secondly, reporting the outcome to the Chief Inspector and the Compensation Fund in writing.
Interested persons are invited to submit comments to the Department of Employment and Labour, Compensation Fund within 30 days of publication of these Draft Regulations. This period will lapse on 15 July 2023. All employers operating in industries prone to occupational injuries or disease are encouraged to make submissions and be on the lookout for these Draft Regulations.
Read the original article at ENSafrica.