Monday, 14 September 2015
Written By Marg. Bruineman
With a new year approaching, employers will once again need to prepare for a new set of obligations under the Accessibility for Ontarians with Disabilities Act.
“The Accessibility for Ontarians with Disabilities Act is one of Ontario’s best-kept employment law secrets,” says Doug MacLeod of the MacLeod Law Firm.
“Perhaps the most onerous obligations for employers are set out in the employment standard which takes effect for private sector organizations with 50 or more employees on Jan. 1, 2016.
My sense is that most organizations with 50 to 100 employees have not heard about this regulation let alone are in a position to comply with it.
“This may, however, be one of the situations where you can lead a horse to water but you can’t make it drink. In other words, if the government is not enforcing this law, then employers may be turning a blind eye to it until there are meaningful consequences to non-compliance.”
The government is phasing in the legislation, first introduced in 2005, over 20 years. Employers with 50 or more employees should have provided training on the Human Rights Code pertaining to people with disabilities and the integrated standards by the start of this year. And by Jan. 1, 2014, they were to have established, implemented, maintained, and documented a multi-year accessibility plan.
Lawyers say it’s a significant year for private sector employers and non-profit organizations that must ensure they have an accommodation plan for employees as well as a return-to-work plan. Smaller employers will have to implement less stringent standards next year.
“I do think that this is a very important year for the legislation, especially for the private sector,” says Andrew Zabrovsky, whose practice at Hicks Morley Hamilton Stewart Storie LLP includes a focus on human rights issues for employers and service providers. “We can’t wait for December to roll around because the obligations . . . are very significant.”
Employers must build accessibility into the employment life cycle from the hiring process through the entire job relationship. That includes a training component that needs to be in place this year. Public sector organizations such as hospitals and municipalities were to have the same standards in place two years ago.
While it does take work to put the plans together, Zabrovsky suggests the work will pay off in the end in terms of liability from a human rights perspective. By following the legislation and completing an audit, employers can demonstrate they’ve fulfilled their obligations and did everything required of them in case of a complaint.
“A lot of the cases before the tribunal, that’s where the case breaks down,” says Zabrovsky, who has been developing policies for his clients and is running training workshops. “I think a lot of organizations see it as another thing that they have to comply with.”
In February, a legislative review by Mayo Moran that focused on the impact of the legislation suggested the act could use a boost in attention through the inclusion of a minister responsible for accessibility. It also suggested a focus on enforcement and simplifying the standards to “clarify key objectives.”
The Moran report also suggested clarifying the relationship between the Human Rights Code and the act.
While the code is a complaint-based system allowing people to assert their rights, the disabilities legislation seeks to remove systemic barriers.
Carol VandenHoek, an employment lawyer at Miller Thomson LLP in Guelph, Ont., who has a special interest in human rights, suspects companies with 50 to 100 workers could experience difficulties because they may not be quite large enough to dedicate resources specific to the disabilities act.
She also notes the concern that there may be confusion between the Human Rights Code and the disabilities act.
“There needs to be clarification,” says VandenHoek.
There’s also a concern about the lack of attention given to the legislation, something that percolates down to the employers that are responsible for complying with it.
“The vast majority of our clients are surprisingly uninformed about this legislation,” says Adrian Ishak of Baker & McKenzie LLP. “The implement of the requirement under [the act] doesn’t fall under any traditional corporate functions. I think for a lot of our clients, this isn’t even on the radar.”
The issue doesn’t fall naturally into any of the typical departments, such as human resources, legal or corporate compliance. There are no labelling, licensing or filing requirements. As a result, awareness of responsibility falls through the cracks for many companies.
Parisa Nikfarjam of Rubin Thomlinson LLP notes there are tools available through the Ontario government as well as other guidance from organizations to help employers through the process. And from an enforcement perspective, a few companies have already received fines for not filing accessibility reports.