The COP must set out how the significant risks identified and assessed in terms of the risk assessment process referred to in paragraph 7.1 above will be addressed.
The COP must cover at least the aspects set out below unless there is no significant risk associated with that aspect at the mine.
| 8.1 |
Medical Incapacity Management Process |
The COP must address the following:
| 8.1.1.1 |
The early identification of employees in need of incapacity management. |
| 8.1.1.2 |
A medical- and/or health risk assessment in order to determine: |
| (a) |
The potential for returning such employee to his own, adjusted or alternative job (work capacity evaluation). |
| (b) |
The potential health and safety risks to continue with his own, adjusted- or alternative work |
| (c) |
The potential to make structured early return to work recommendations, which may include ongoing physical or psychological treatment and vocational rehabilitation. |
| (d) |
Making early return to work recommendations to, amongst others, prevent such employee to develop a disability mind set. |
| (e) |
To establish if and when an employee with a medical incapacity will qualify as a person with a disability so that the employer can introduce the necessary interventions as required under EEA. |
| 8.1.2 |
Early identification of employees |
The COP must identify employees with medical incapacity as follows:
| (a) |
Regular analysis of sick leave absenteeism by Human Resources to identify employees with high frequency absenteeism or those with long periods of absenteeism, usually longer than 21 days; |
| (b) |
Employees with abnormal findings at pre-placement and/or annual medical surveillance done by the occupational health service; |
| (c) |
Sick certificates from treating medical specialists indicating an employee with medical incapacity; |
| d) |
Line manager reporting poor work performance and/or work attendance of employees; and |
(e) Employee self-reporting:
| • |
Wherever there is reason to be concerned about any employee identified by one of these means, such instance should be investigated to determine possible medical incapacity; |
| • |
The Human Resource Consultant arranges a formal meeting with such employee in order to identify the cause of absenteeism and/or poor performance and take appropriate actions. The employee is classified in one of the following categories to facilitate further management: |
| o |
Employee with medical condition; o Employee with social problem; |
| o |
Employee with incapacity other than medical (e.g. training, skills, etc.); |
| o |
Other Human resource factors (e.g. sick leave abuse); and |
| • |
Employees suffering from medical conditions are reported to an occupational medical practitioner to facilitate the incapacity management process. |
8.1.3 The COP must do medical assessment
The medical assessment done by the occupational medical practitioner should be focused on obtaining a complete medical and work history, as well as all other relevant occupational health information to determine the employee's fitness to work.
| • |
The OMP should refer the employee with recommendations to the medical incapacity management committee. |
8.1.4 The COP must perform work capacity evaluation.
| 8.1.4.1 |
Work capacity evaluation is the evaluation of the ability to execute the essential functions of the job, determining of the endurance to sustain the capacity over the whole work shift and to do such a job without risk to the health and safety of the employee, co-workers or other persons. It therefore depends on an evaluation of the employee's physical and mental condition, the workplace conditions and demands of the specific employee, taking into account the minimum health standards for the specific job in question. |
In assessing the work capacity of an affected employee the occupational medicine practitioner should:
| • |
Determine the essential functions and person-job specifications. |
| • |
Refer to the minimum health standards. |
| • |
(Refer to the appropriate minimum health standards of the relevant job to identify the specific physical and mental standards required.) |
| • |
Determine the functional capacity. |
|
NOTE:
When doing the functional capacity assessment it should be remembered that the Social Model (ability of a person to do a job) is internationally (ILO and World Health Organisation) preferred to the Medical Model (medical diagnosis only). It is therefore imperative for the occupational medical practitioner that each case be evaluated individually and not to make assumptions based on general perceptions or beliefs.
|
| • |
Determine the physical capacity: |
This evaluation considers every bodily system and/or organ and evaluates the status quo of the function of the specific system and or organ. Comparing the findings with the predicted values of "normal" individuals (Refer AMA Guideline 6th edition for normal values and impairment ratings) an accurate measurement can be done of the impairment of function of the specific system and/or organ.
| • |
Determine the mental capacity |
Mental capacity screening consists primarily of cognitive and mood screening by applying appropriate screening tests, e.g. DASS, MMSE, etc.
| • |
Occupational therapy evaluation and determining rehabilitation prospects |
Medical impairment ratings depend on maximal medical improvement of specific medical conditions. The possibility of further medical treatment available and the expected response to such treatment has to be taken into account to evaluate an employee's ability to improve on the existing functional- and work capacity assessment results.
| 8.1.5 |
The COP must address return to work recommendation |
| 8.1.5.1 |
Where it is possible to return an employee to his own, adjusted or alternative work, but the employee requires further and/or ongoing medical treatment and/or physical, mental, or vocational rehabilitation, the occupational medical practitioner should include such recommendations when referring the employee to the Medical Incapacity Management Committee. |
| 8.1.5.2 |
As the early return to work placement of such employees usually involves a multidisciplinary team of experts (e.g. safety specialist, occupational hygienist, occupational therapist, treating specialists, clinical psychologist, etc.), the occupational medicine practitioner should liaise with the appropriate specialists before making such recommendations. |
| 8.1.5.3 |
An early return to work recommendation should contain the following information: |
| (a) |
Expected duration of treatment, rehabilitation and training required; |
| (b) |
Expected work capacity against predicted progress; |
| (c) |
The recommended periods for doing re-assessments to determine progress employee against expected parameters, |
| (d) |
Special reasonable accommodation measures to be implemented such as not working on heights or other relevant to the specific case and; |
| e) |
The proposed early return to work recommendations is then discussed at the appropriate medical incapacity management committee. |
| 8.1.6 |
The COP must address reasonable accommodation. |
| 8.1.6.1 |
Reasonable accommodation requirements apply to applicants and employees with disabilities who are suitably qualified for the job and may be required: |
| • |
during the recruitment and selection process; |
| • |
in the working environment; |
| • |
in the way work is usually done, evaluated and rewarded; and |
| • |
in the benefits and privileges of employment. |
| 8.1.6.2 |
The obligation to reasonably accommodation may arise when an applicant or employee voluntarily discloses a disability related accommodation need (which may be verified by employer) or when such a need is reasonably self-evident to the employer. |
| 8.1.6.3 |
Employers must also try to accommodate employees, as far as reasonably practicable, when work, or the work environment, changes or when impairment varies which affects the employee's ability to perform the essential functions of the job. |
| 8.1.6.4 |
The employer should consult the employee and, where reasonable and practicable, technical experts to establish appropriate mechanisms to accommodate the employee e.g. organisation with or for people with disabilities. |
| 8.1.6.5 |
Reasonable accommodation includes, but is not limited to: |
| 1. |
adapting existing facilities to make them accessible; |
| 2. |
re-organising workstations; |
| 3. |
changing training and assessment materials and systems; |
| 4. |
restructuring the job so that non-essential functions are re-assigned; |
| 5. |
adjusting work time and leave; and |
| 6. |
providing specialised supervision, training and support in the workplace. |
|
NOTE:
The employer is not obliged to accommodate an employee with a disability if this would impose an unjustifiable hardship on the business of the employer or where such a definite safety risk exists. Nor is the employer obliged to create new jobs in order to accommodate employees with medical incapacity and/or disability.
|
| 8.2 |
Management of employees with medical incapacity |
It is imperative that the management of employees with medical incapacity will always be done in a substantive and procedurally fair manner. Due to the complexities of the different pieces of legislation in this regard management should establish adequate governance structures to ensure full compliance. The governance structure required to ensure effective and efficient management of medical incapacity should allow for the unique operational circumstances of each mining entity, e.g. small and large operations. It is, however, imperative that the functions listed below are represented at each operation.
8.2.1 Medical Incapacity Management Committee
This is a formal body at each mine or operation or site where medical incapacity and/or impairment and possibilities of treatment, rehabilitation, adaptation of the tasks or work environment, reasonable accommodation in alternative posts, or permanent medical disability are discussed, evaluated and managed.
The directives for the decision-making in this committee must be protection of employee rights of fair labour practices, safety and health of employees and other persons, and protection of employer's rights to productivity and not to suffer unjustifiable hardship.
It is important for the specific operation or site to establish beforehand what would constitute a quorum for decision making purposes in their own context.
Suggested and/or co-opted members of Medical Incapacity Management Committee:
| 1. |
The chairperson (a Senior Human Resources Official). |
| 2. |
The medical incapacity coordinator. |
| 3. |
The human resources consultant of the medical case |
| 4. |
The occupational medical practitioner (OMP) and/or the occupation health nursing practitioner (OHNP). |
| 6. |
Occupational Hygienists, if appropriate. |
| 7. |
A secretary (to keep minutes). |
| 8. |
The employee concerned. |
| 9. |
The employee representative. |
| 10. |
The direct supervisor and/or line manager of the area where the employee is employed, |
| 11. |
Any other employee, specialist, social worker or consultant co-opted permanently or temporarily by the chairperson to assist the medical incapacity panel in fulfilling its functions. |
|
NOTE:
The different functions could have the same representatives at small operations.
|
| 8.2.2 |
Functions of Medical Incapacity Management Committee |
The functions of the Medical Incapacity Management Committee are to:
| 8.2.2.1 |
Consider the OMP's findings and recommendations to determine suitable alternative placement. |
| 8.2.2.2 |
Consider findings of workplace inspection report for purpose of possible reasonable accommodation. |
| 8.2.2.3 |
Consider the recommended early return to work recommendations (if applicable) to determine suitable alternative placement. |
| 8.2.2.4 |
Ensure compliance to all relevant legal obligations. |
| 8.2.3 |
Where such employee still suffers from medical incapacity after the pre-determined period for treatment and/or rehabilitation, the OMP should evaluate this employee to verify if such employee will qualify as a Person with Disability (EEA) and if so, then reasonable accommodation measures should be considered by the mine. The employee has to satisfy all three of the following criteria in order to qualify as a Person with Disability: |
| (a) |
Medical impairment must be present (Usually measured against AMA guidelines). |
| (b) |
The impairment should be, or expected to be, long lasting (more than 12 months) or recurring (like epilepsy). |
| (c) |
The condition must cause substantial limitation in the employee's ability to do the essential functions of his job. |
| (d) |
The Medical Incapacity Management Committee is responsible, after considering the recommendations of the OMP, to determine one of the following: |
| • |
Permanent adjusted duty (continuation of normal services with job modification) |
| • |
Temporary adjusted duty |
| • |
Permanent transfer to another type of work (even at a lower grade) |
| • |
Termination of service, where an employee cannot be accommodated. |
| 8.2.4 |
The Committee should ensure fairness of process in all respects of their functions. |
| 8.2.5 |
The Committee should allow for the employee involved, or his/her representative, to present his/her specific case and to make further representations to the panel for consideration; to bottom of 9.3.2. |
| 8.2.6 |
The Committee Members should discuss the findings and recommendations of the committee, and the recommendations of the employee and/or his/her representative, and should convey their findings to the employee in writing. |
| 8.2.7 |
The Committee should inform the employee on the appeal procedures, if applicable. |
| 8.2.8 |
The Committee should assess and review its effectiveness on an ongoing basis to ensure continuous improvement. |
| 8.3 |
Disputes concerning the process and/or decisions of the Medical Incapacity Management Committee: |
| 8.3.1 |
The COP should ensure that the objective of this committee is to have consensus that the process followed was consistent with this guideline and that fair labour practice was followed in each case with medical incapacity and/or disability. However, sometimes differences in opinion may exist between members of this committee on the management of a specific case and such differences should be resolved in a practical, professional and timely manner to try and avoid delays in decision making. |
| 8.3.2 |
Appeal in terms of section 20 of the MHSA |
If the employee is not satisfied with the process as mentioned in 8.2.2 above, the employee still have the right to, in terms of Section 20 of the MHSA lodge an appeal to the Medical Inspector.
| 8.3.3 |
Flowchart outlining the management of employees with medical incapacity process |
The COP must recommend that personnel involved in the process of medical incapacity management should, where appropriate, have adequate knowledge and skills in the following:
| 8.3.4.1 |
Legal obligations related to employees with medical incapacity and/or disability; |
| 8.3.4.2 |
making structured early return to work recommendations; |
| 8.3.4.3 |
coordination, synchronization, case management and communication relating to medical treatment and rehabilitation; |
| 8.3.4.4. |
workplace assessment for reasonable accommodation of employees with medical incapacity and/or disability; |
| 8.3.4.5. |
health Risk Assessment practices for employees with medical incapacity; |
| 8.3.4.6. |
Health Impact Assessment practices for employees with medical incapacity; and |
| 8.3.4.7. |
assessment of medical impairment and disability. |
Contingency Fees Act, 1997
