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Canada, Labour and Employment, The Accessibility For Ontarians With Disabilities Act, 2005: Preparing Your Organization For Compliance – McCarthy Tétrault

06 April 2011
Article by Daniel Pugen

Within less than one year, most organizations will have to comply with the Customer Service Standard (CSS) of the Accessibility for Ontarians with Disabilities Act (AODA). The CSS applies to designated public sector organizations as of January 1, 2011. Commencing January 1, 2012, it will also apply to every other
organization that provides goods or services to members of the public or other third parties and that employs at least one employee in Ontario. Simply
put, most private sector employers must comply by January 1, 2012.

As noted previously in the LEQ, the AODA is legislation that seeks to gradually improve accessibility for persons living with disabilities through the implementation of five “Accessibility Standards” — Built Environment, Employment, Transportation, Information and Communication, and Customer Service. Under the Ontario Human Rights Code, organizations
already have a “duty to accommodate” employees with disabilities and in the provision of goods and services to third parties. However, the AODA’s Accessibility Standards will provide for more specific obligations where organizations will have to take a more proactive role in meeting the accommodation needs of, for example, customers and employees with disabilities.

Currently, only the CSS has become law. Under it, organizations in Ontario will have obligations to:

  • establish policies, practices and procedures governing the provision of goods or services to persons with disabilities, including provisions for assistive devices;
  • ensure that service animals and support persons are not denied entry to an organization’s facility if the public and/or third parties have access to the premises;
  • provide notice of temporary disruptions in services usually used by those with disabilities;
  • ensure that persons involved with providing services to members of the public or other third parties receive training on: (i) how to interact and communicate with persons with various types of disabilities; (ii) how to use equipment or devices available on the provider’s premises that may help a person with a disability; and (iii) what to do if a person with a particular type of disability is having difficulty accessing the provider’s goods or services;
  • provide ongoing training in connection with any changes to the organization’s policies, practices and procedures; and
  • establish a process for receiving and responding to feedback (including complaints) about the manner in which an organization provides goods or services to those with disabilities.

Moreover, for all public sector organizations, as well as other organizations with at least 20 employees, there are obligations to:

  • prepare documents outlining its policies, practices and procedures;
  • file accessibility reports with the Ministry; and
  • provide copies of documents to any person in a format that takes into account the individual’s specific disability.

In addition to considering the CSS, organizations should start turning their attention to the proposed Employment Standard. On May 31, 2010, the Ontario government announced the development of an Integrated Accessibility Regulation (the Proposed Regulation), which includes and integrates into one streamlined regulation the Employment Standard, the Information and Communications Standard, and the Transportation Standard.

The Proposed Regulation is in draft form and includes a proposed timeline for compliance, a proposed framework for monetary penalties, and a proposed designation of the Licence Appeal Tribunal as the body to hear appeals relating to the AODA. Currently, timelines for compliance range from 2011 to 2025.

The Employment Standard set out in Part “C” of the Proposed Regulation will likely have the largest impact on employers’ obligations in terms of both administrative resources and costs. The goal of this standard is to help employers create equal employment opportunities for people with disabilities by removing barriers to employment.

Private sector employers should anticipate implementing compliance gradually over the coming decade, with the bulk of requirements becoming due in 2016
for employers with more than 50 employees, and 2017 for those who employ less than 50 employees.

The proposed Employment Standard will apply to the recruiting, hiring and retaining of paid employees, including full-time, part-time, or apprenticeships.
However, it does not apply to unpaid employees, volunteers, or persons on co-op or high school work experience placements.
Based on the current draft, the Employment Standard will obligate organizations to:

  • Provide training on the requirements of the accessibility standards to employees and, for employers with 50+ employees, create a document describing the training policies.
  • Establish, maintain and implement policies governing the implementation of the accessibility standards. The policies must include a description of how the organization will meet the standards, as well as a statement of commitment for meeting the needs of persons with disabilities. As noted above, employers with 50+ employees will have to prepare a separate document describing the policy. This must be available upon request, and in a format that meets each person’s needs.
  • Accommodate persons with disabilities in the recruitment process by, for example, notifying applicants that accommodations will be provided to enable
    their participation in the recruitment process, and also notifying elected applicants that any assessment and selection materials and processes used will be available in an accessible format upon request.
  • Develop individual accommodation plans for employees with disabilities, upon request. The plans must assess and accommodate employees on an individual basis, identify the accommodation to be provided, include timelines for the provision of accommodations, and include individualized workplace emergency information. This would only apply to public organizations and private sector employers with 50+ employees.
  • Provide electronic information in a new format if working with electronic information is necessary to perform the job.
  • Deliver individualized workplace emergency information to employees with disabilities.
  • Take into account the accommodation needs of employees with disabilities in existing performance management, career development, and redeployment processes.
  • Develop procedures that include individual accommodation plans where appropriate for employees returning to work from injury or illness.
  • Employers with 50+ employees will also have to file annual accessibility compliance reports with the Ministry for review and approval.

It is important to note that these are only proposed obligations. Based on the feedback received by the Ministry through the consultation process ending in the fall of 2010, these obligations may be changed or new obligations may be suggested. Any changes will be reflected in future editions of the LEQ.

Tips for Employers:

Your organization should familiarize itself with the AODA, particularly the CSS, as it will bind most organizations that provide goods and services beginning January 1, 2012. In addition:

  • A compliance team should be assembled or a point person identified both before and after January 1, 2012.
  • Existing policies should be reviewed, and new policies and procedures that address the requirements should be created.
  • Employee training programs may need to be revised (especially for those employees who deal with customers), as well as any third-party contracts that raise potential compliance issue.

Although the other Accessibility Standards are not law yet, as is demonstrated from the draft Employment Standard, these obligations will likely be proactive and substantial and will likely require additional HR staffing and resources to implement. Therefore, it is never too early to stay apprised of the development of these and other standards.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Reproduced from http://www.mondaq.com/canada/article.asp?articleid=128514&rss=0

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