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Incapacity due to ill-health, whether temporary or permanent, can be a challenging and sensitive topic to navigate with an employee. The incapacity process is therefore a mechanism to ensure that both the employer and employee’s best interests are managed effectively.

Incapacity due to ill-health refers to a situation where an employee is unable to perform their normal duties or activities due to health-related issues.

Important Note: If an employee’s injury or ill-health was caused in the duration of their employment, it is important to immediately report it in terms of the Compensation for Occupational Injuries and Diseases Act (COIDA)

When it comes to an employer’s attention that an employee may be incapacitated in some way, it is important to follow the incapacity process and ensure legal compliance. It is therefore encouraged to immediately contact your EOHCB representative to assist in guiding you through the process.

Next, an employer should gather information and keep a record of all communication with the employee. This could include requesting additional medical reports from a medical practitioner or any other documentation that may be needed to determine the extent of the employee's incapacity.

When all documentation is ready, then the employer should consult with the employee as well as their respective representatives. In the consultation it is important to assess the reason for the incapacity, the extent of the incapacity, and the expected duration of the incapacity.

The purpose of this consultation is to assess whether the employee can fairly be expected to continue in the employment relationship. Each case should be assessed on its own merits such as the likelihood of recovery, the duration or frequency of the employee’s absence from work, and the effect that it has on the operations of the business.

Once that has been established the employer and employee can discuss the way forward.

If an employee is unable to perform their normal duties due to health reasons the employer should consider adaptation of the duties or work circumstances in some way to accommodate the disability, consideration of an alternative position, employment of a temporary employee to fill the post for a limited period as well as reasonable assistance to the employee such as counseling or rehabilitation.

Further consultations, medical reports, or ongoing/periodical monitoring of the situation may be required as the situation develops.

If the employee’s duties cannot be adapted in such a way that the employee is able to fulfill those duties, and no alternative position is available, then the employer may consider termination due to incapacity.


 Incapacity is a complex, challenging, and often sensitive matter that requires careful consideration to protect the rights of the employee as well as the employer and ensure that the matter is effectively handled while complying with the relevant legal requirements. We therefore encourage you to reach out to your EOHCB representative to assist you through this process. 



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