a) There must be an impairment
An impairment may either be physical or mental or a combination of both. A physical impairment means “a partial or total loss of a bodily function or part of the body. It includes sensory impairments such as being deaf, hearing impaired or visually impaired”.
A mental impairment is a clinically recognised condition or illness that affects a person’s thought processes, judgement or emotions. This includes conditions such as intellectual, emotional and learning disabilities. For reasons of public policy, certain conditions or impairments may not be considered as disabilities.
b) The impairment must be long-term or recurring
Long-term means the impairment has lasted for, or is likely to persist for at least twelve months. Recurring means the impairment is one that is likely to happen again and when it does, it is substantially limiting. The condition can go away for a period of time and return again but it is never cured. It includes a constant chronic condition, even if its effects on a person fluctuate, such as is the case in some forms of multiple sclerosis. Progressive conditions are those that are likely to develop or change or recur. People living with progressive conditions or illnesses are considered as people with disabilities once the impairment starts to be substantially limiting. Progressive or recurring conditions which have no overt symptoms or which do not substantially limit a person with no disabilities – for example, a person with cancer, tuberculosis or HIV would not be covered under the EE Act until the symptoms substantially limit the person’s ability to perform their job.
c) The impairment must be substantially limiting
An impairment is substantially limiting if its nature, duration or effects substantially limit a person’s ability to perform essential functions of the job for which he/she is being considered. If the effects of the impairment are not substantially limiting, even if they are physical and/or mental, are long-term or recurring, then the person is not covered under the EE Act. Employers are encouraged to seek the assistance and advice of technical experts to determine whether a particular impairment is substantially limiting, or an applicant or employee may be able to provide information that is deemed sufficient to document this.
In applying our understanding to the criteria to determine whether there is a disability, one needs to remember that an impairment is a problem in body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. Disability is therefore not just a health problem. It is a complex phenomenon, reflecting the interaction between features of a person’s body and features of the society in which he or she lives. Overcoming the difficulties faced by people with disabilities requires interventions to remove environmental and social barriers.
d) Additional Document Resources