The Incapacity section of the Labour Relations Act requires that an employer should investigate the extent of the ill health or injury if an employee is temporarily unable to work.
It also states that the cause of the incapacity is relevant should the employer decide to dismiss the employee. The Act suggests that in certain kinds of incapacity for example alcoholism and drug abuse, counselling and rehabilitation may be appropriate steps to consider.
The Employment Equity Act states that it is not unfair discrimination: –
- to distinguish, exclude, prefer any person on the basis of the inherent requirements of the job
Testing of an employee for any medical reason is prohibited unless: –
- it is justifiable to do so in the light of medical facts, employment conditions or the inherent requirements of the job.
From the above it is apparent that person/job specifications outlining the inherent requirements of the job are necessary when referring employees. This ensures objectivity of the medical investigation/assessment.
In many situations, the procedure in referring an employee for a medical investigation is often hampered by misunderstanding by the employee and his representative.
Employees tend to perceive this intervention to be a disciplinary measure and infringement of their rights.
It is therefore important for organisations to ensure that they have a clear policy in relation to the management of incapacity. This policy should include among other important factors the relevant legislative provisions and the stipulation that an employee may be required to undergo a medical assessment to confirm the duration and extent of the incapacity.