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The duty of employers to return disabled workers back to employment: A comment on the 2023 draft regulations on rehabilitation, reintegration and return to work
Estie Gresse
Abstract
Persons with disabilities are a large, disadvantaged minority, comprising approximately 12% of the population. Since the COVID-19 pandemic, it has become essential for all stakeholders to formulate strategies to mitigate the potential loss of employment for all citizens in South Africa, including those who become disabled during employment. In 2008 South Africa ratified the Convention on the Rights of Persons with Disabilities (CRPD) and the Optional Protocol to the Convention on the Rights of Persons with Disabilities, thus committing itself to giving effect to its obligations, which include the reasonable accommodation of disabled employees. Article 26 of the CRPD mandates that state parties take effective and appropriate measures to enable persons with disabilities (PWDs) to attain and maintain maximum independence and physical, mental, social and vocational ability, and to ensure their social inclusion. Article 27 of the CRPD stipulates inter alia that States Parties shall safeguard and promote the realisation of the right to work, including the right of those who incur a disability during employment. South Africa does not have disability-specific legislation, and reasonable accommodation measures are set out in a fragmented manner in legislation, policies and other relevant codes. South Africa amended the Compensation for Occupational Injuries and Diseases Act 130 of 1993 in 2018 and again in 2023. On the 15th of June 2023 South Africa further published draft regulations on rehabilitation, reintegration and return to work, which require careful consideration and analysis by all role-players in a return-to-work (RTW) arrangement. It is unclear how the new amendments will affect the existing employer obligations to reasonably accommodate, as set out in other labour legislation. An analysis of the current duties will provide some recommendations for role clarification.
