Incapacity or the inability to perform the functions of a job can be the result of illness, lack of knowledge, or simply being incapable of doing the job. Not having the ability to do the job due to ill health is very different to being incapable of doing the job for some other reason. When considering the management of incapacity it is important that clarity exists.
Managing incapacity where the employee is incapable of doing the work is relatively simple and most managers and supervisors will deal with this quite easily.
- Establish the cause of the problem and deal with the cause, not the problem
- If the cause is lack of training then training is the solution.
- Where the cause is an inability to do the work due to a lack of specific skills or talents the employee should be offered another position. This would assume that training has not, or will not help.
- If neither of these approaches work then the last resort is the cancellation of the employment contract on the grounds of incapacity.
There should be clear policies in place to guide the manager in such instances. These are usually contained in the company’s code of conduct and disciplinary procedures.
Managing incapacity where illness is concerned is a different and more complex situation. Consider the following factors
- What impact is it having on performance?
- Is the employee continually absent from work?
- Is the employee a danger to self or others?
- What effect is the illness having on colleagues?
- What is the cause of the incapacity?
Consider the facts relating to the illness or incapacity and at the same time the consequences or impact it is having. Be impartial in making this assessment and make a mature decision on the correct course of action to take.
HIV/AIDS is very prevalent and needs careful consideration when discussing the management of incapacity.
Is incapacity due to HIV/AIDS any different to any other form of illness or incapacity?
No, there is no difference whatsoever. Incapacity due to HIV/AIDS must be treated the same as any other. Empathy yes, sympathy no.
Refer to your company policy relating to incapacity and HIV/AIDS before making any decisions. The policy should deal with performance management and the procedures to follow in order to determine medical incapacity. If this is not the case then discuss it with management and make the necessary amendments. Impartiality is important as is working in accordance with these policies and procedures.
Absence due to ill health
Where an employee is absent on a regular basis due to ill health the Basic Conditions of Employment (BCE) apply.
- One day for every 26 days worked in the first six months
- After six months the sick leave entitlement is equal to the number of days the employee would normally work in a six week period
- During this period the employee is entitled to full pay
- A medical certificate is required if more than two consecutive days sick leave is taken or if the employee is off sick more than twice in any period of eight weeks
- The sick leave cycle runs for a period of 3 years and sick leave does not accumulate from one cycle to the next
- The employer is not obligated to pay for sick leave taken in excess of the six week period or where the employee fails to produce a medical certificate
Companies may have their own policies regarding sick leave that fall outside of the (BCE) above. These cannot offer less than what is contained in the BCE. Be sure to act in accordance with these policies.
Follow the laid down disciplinary procedures and take appropriate steps to rectify the abuse.
- Disciplinary hearing
- Remedial action
When it becomes apparent that an employee can no longer perform the duties of the position, it will be necessary to take alternate steps.
Termination of employment is a last resort
Understanding of the employee’s position is important but fairness and best practice are called for. Consider initially an alternate position should one be available. Offer lighter duties, reduce the workload and if necessary the working hours. Try to assist by any means at your disposal. Most importantly, avoid any form of discrimination irrespective of the cause of the incapacity. Adopt a Standard approach.
Should the cause of incapacity be HIV/AIDS related, this will need to be treated with empathy and confidentiality. In addition to managing the cause of the problem, it will be necessary to offer guidance and counseling and to advise the employee what assistance is available.
Employment may not be terminated solely on the basis of the HIV/AIDS status
Should it become necessary to dismiss an employee due to incapacity, this should be done as laid down in you company policy and procedures referred to earlier.
The policy should outline
- The company’s standing on unfair discrimination
- Guidelines for employers and employees on how to manage HIV/AIDS
- Creating a safe working environment
- Procedures to manage occupational incidents and claims for compensation
- Measures to prevent the spread of HIV/AIDS
- Strategies to reduce the impact of HIV/AIDS
- How to support those infected or affected by HIV/AIDS
Managing incapacity is a cause of concern for many managers. It need not be. Keep it simple, abide by the policy and code, comply with disciplinary procedures, and be fair. Manage the employee in terms of the position held and the potential for transmission. This approach will ensure your protection should there be a “backlash” from other employees for alleged discrimination. Managing the HIV positive employee is difficult and the likelihood of accusations of discrimination is great. Your hands are tied because of the confidentiality and privacy associated with the illness.
Des Squire (Managing member)
Amsi and ASSOCIATES cc