Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Ontario for All People with Disabilities http://www.aodaalliance.org aodafeedback@gmail.com Twitter: @aodaalliance
April 4, 2018
SUMMARY
Please help the AODA Alliance present ideas to the Ontario Government on how to tear down the many disability barriers that people with disabilities face in employment in Ontario.
In 2011, the Ontario Government passed the Employment Accessibility Standard under the Accessibility for Ontarians with Disabilities Act. It is part of the larger 2011 Integrated Accessibility Standards Regulation.
Five years after it was passed, the Government was required to appoint a new Employment Standards Development Committee (including people with disabilities and employers) to review the Employment Accessibility Standard. That Standards Development Committee is mandated to make recommendations for revisions to the Employment Accessibility Standard, if needed, to ensure that this accessibility standard tears down all the barriers that people with disabilities face in employment.
On March 20, 2018, the Ontario Government made public a series of draft recommendations for revisions to the Employment Accessibility Standard, that the Employment Standards Development Committee has proposed. The Government has given the public up to May 5, 2018 to give feedback on these draft recommendations. Do they go far enough? Are other revisions needed to ensure that employment becomes fully accessible to people with disabilities by 2025?
We encourage you to give your feedback to the Government. This will be passed along to the Employment Standards Development Committee. As well, please send us your feedback. the AODA Alliance plans to submit a brief to the Employment Standards Development Committee, giving our feedback on its draft recommendations for revisions to the Employment Accessibility Standard. We need your feedback as soon as possible, and no later than April 20, 2018, if we are to be able to meet the Government’s May 5, 2018 deadline. Send us your thoughts at aodafeedback@gmail.com
Below, to help you, we set out the following:
* The Government’s announcement of this invitation for public input on the Employment Standards Development Committee’s draft recommendations.
* The actual draft recommendations from the Employment Standards Development Committee
* The text of the current Employment Accessibility Standard in the 2011 Integrated Accessibility Standards Regulation.
* Background information on the AODA Alliance, including how to sign up for or unsubscribe from these AODA Alliance Updates.
Want to know what we have said on this topic in the past? You might also wish to check out the June 14, 2010 brief which the AODA Alliance sent the Ontario Government, on the final proposal for the Employment Accessibility Standard that the first Employment Standards Development Committee came up with in early 2010.
MORE DETAILS
The Ontario Government’s March 20, 2018 Posting: Improving accessibility standards for employment
Originally posted at:
https://www.ontario.ca/page/improving-accessibility-standards-employment#section-2
We are updating our accessible employment standards to make employment more accessible to people with disabilities. Share your ideas on how public and private employers can remove employment barriers to accessibility.
Your feedback will help the Employment Standards Development Committee, draft final recommendations for the Minister Responsible for Accessibility to consider.
Read the initial recommendations.
Closing date: May 5
Complete our online survey
Background
Under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), we must review accessibility standards every five yearsto determine whether theyare working as intended or need adjusting.
In 2017, the Minister Responsible for Accessibility established the Employment Standards Development Committee a group of representatives from the employment sector, municipalities, persons with disabilities and affected ministries (non-voting) to make recommendations on our existing Employment Standards.
About the consultation
This year, the committee is putting forward 8 recommendations, plus a proposed change in the long-term objective of the standard.
We would like your feedback on the initial recommendations to help the committee create a final draft. The recommendations focus on several areas, including: * recruitment
* guidance materials on accessible employment practices for employers and employees * emergency response information for employees
* individual accommodation plans
You can review the initial recommendations by reading them online.
The Committee will review your comments before finalizing their recommendations and then submitting them to the Minister Responsible for Accessibility for consideration.
While all feedback will be reviewed, it will not necessarily be adopted in the revised Employment Standards.
How to participate:
Please provide feedback by May 5, 2018.
1. Read the initial recommendations
2. Send us your feedback by:
o completing the online survey
o email at aoda.input@ontario.ca
o mail to:
Attention: Laura McKeen, Chair
Employment Standards Review Feedback
Accessibility Directorate of Ontario
777 Bay Street,
6th Floor, Suite 601A
Toronto, ON
M7A 2J4
If you need the initial recommendations in an alternate format or if you have any questions call us atToll-free: 1-866-515-2025 or Toll-free TTY: 1-800-268-7095 Monday to Friday from 9 a.m. to 5 p.m. or email us at aoda.input@ontario.ca.
Your privacy matters
Your privacy is important to us.Do not include personal information such as your name, address or phone number in your responses or any information that identifies a friend, family member or other person.If you choose to provide personal information through the survey, this website or by email, the information will be handled according to our privacy statement.
March 20 2018 Draft Recommendations of the Employment Standards Development Committee
Originally posted at:
https://www.ontario.ca/page/2018-review-employment-standards-initial-recommendations-report 2018 Review of the Employment Standards – Initial Recommendations Report
Draft recommendations from the Employment Standards Development Committee.
The committee works to ensure employment is more accessible to people with disabilities.
Background
The purpose of the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) is to achieve an accessible Ontario by 2025 through the development, implementation and enforcement of accessibility standards that apply to the public, private and not-for-profit sectors.
The initial Employment Standards Development Committee (SDC), whose work informed the creation of the accessible Employment Standards, which first came into effect July 1, 2011, established the standards long-term objective, which is to set out policies, procedures and requirements for the identification, removal and prevention of barriers across all stages of the employment life cycle for persons with disabilities.
Implementation of the standard was staggered based on size and type of organization with the last sector, small organizations (1-49 employees), coming into effect January 1st, 2017. The AODA requires the review of accessibility standards five years after the Standards become law and every five years subsequently to determine whether the standard is working as intended and to allow for adjustments to be made as required.
Under the AODA, the Standards Development Committee must review a standard as follows: re-examine the long-term objectives of the standard
if required, revise the measures, policies, practices, and requirements to be implemented on or before January 1, 2025, and the timeframe for their implementation
develop another proposed standard containing modifications or additions that the SDC deems advisable for public comment
make such changes it considers advisable to the proposed accessibility standard based on comments received and make recommendations to the Minister
In March of 2017, the Minster Responsible for Accessibility established the Standards Development Committee to undertake the legislated review of the Employment Standards.
The Standards Development Committee is comprised of representatives invited by the Minister Responsible for Accessibility to undertake a legislated review of the accessible Employment Standards. The members represent the disability community and the sectors of obligated organizations (broader public sector, private sector). In addition, non-voting members from the Accessibility Directorate of Ontario and its partner ministry (Ministry of Labour) also sit on the SDC.
The Minister also wrote to the SDC Chair to provide terms of reference and a mandate letter for the review. The SDC was asked to focus the review on requirements for sectors that have been in effect for more than 24 months, as well as to identify any gaps that may remain in the standards.
The SDC was asked to take into account the development of Access Talent: Ontarios Employment Strategy for People with Disabilities. The strategy has multiple facets including helping more people with disabilities connect to job opportunities and more businesses to connect to a talented and underutilized labour pool. The strategy is also engaging employers as active partners in breaking down employment barriers for people with disabilities and promoting inclusive workplaces.
The employment strategy complements the regulatory foundation of the accessible Employment Standards. Any considerations pertaining to the advancement of employment opportunities for persons with disabilities will continue to align with discussions around the strategy.
The SDC has met its legislated obligations by undertaking a rigorous review of the current Employment Standards, including their long-term objective and all the requirements that obligated organizations must follow. The following report is the SDCs proposed direction on the Employment Standards. Where the SDC is proposing regulatory amendments or alternative approaches, an explanation of the proposed change is provided.
As required under the AODA, the SDC is submitting its report on initial proposed Employment Standards to be made available for public comment. Following the public posting period, the SDC will make such changes it considers advisable to the proposed Standards, based on public feedback received and submit its final proposed Standard to the Minister Responsible for Accessibility.
Introduction: Summary of SDC recommendations
This section of the document provides a quick reference to the recommendation made for each item of discussion. Detailed explanations of how the SDC arrived at each recommendation are contained at the end of the document, in the section titled Initial Recommendations for Public Comment. The title of each section here contains a hyperlink to the full recommendation providing further detail.
The SDC recognizes the importance and priority of reducing barriers and accordingly the timing of each regulatory recommendation should be implemented considering the timing of other changes to the Integrated Accessibility Standards Regulation, impact on the disability community, business community and obligated organizations. The recommendations below should be read with the above considerations in mind.
Long-term objective
The AODA requires Standards Development Committees to establish long-term objectives to inform the development of accessibility standards. During a review the SDC is required to re-examine the long-term accessibility objectives. Long-term objectives do not appear in Standards. They are presented in guidelines and communications materials.
The establishment of long-term objectives at the beginning of the standards development process and during the review process helps guide and inform Standards Development Committees in determining which accessibility requirements will help achieve the identified goals. Long-Term Objectives are the intended outcome of the Standards.
The initial long term objective of the accessible Employment Standards was described as follows:
The long term objective of this initial proposed employment accessibility standard is to set out policies, procedures and requirements for the identification, removal and prevention of barriers across all stages of the employment life cycle for persons with disabilities.
The SDC recommends a new long term objective:
The long term objective of the Employment Standards is to identify, remove and prevent barriers across all stages of the employment life cycle for persons with disabilities by 2025.
SDC members believe the new objective more clearly captures the intended outcome of the accessible Employment Standards. However, the SDC agreed to use the consultation period following the posting of this report to seek public comment on whether the objective fully supports the AODAs goal of an accessible Ontario by 2025.
Improved clarity with the Ontario Human Rights Code
Recommendation 1: Improve and strengthen guidelines
Improved clarity between the AODAs accessible Employment Standards and the Ontario Human Rights Codes duty to accommodate is required.
The SDC recommends the government and the Ontario Human Rights Commission review and strengthen guidelines and clarification for employers with regard to the differences between Ontario Human Rights Code and the AODAs Employment Standards.
Note: By review the Committee intends the government and the OHRC to explore the causes of confusion regarding the relationship between the AODA and the Ontario Human Rights Code as a first step.
Timing:
To be completed within two years of the government accepting the recommendation.
Scope and interpretation
Recommendation 2: Scope and interpretation (Section 20)
The SDC believes a gap exists because a definition of employee is not included in the AODA and Integrated Accessibility Standards Regulation (IASR). The SDC recommends a definition of employee should be added to the AODA or IASR and be consistently applied throughout. This definition should be consistent with the intent and purpose of the AODA and should be based on the employeremployee relationship.
Note: The SDC intends that any definition of employee added to the AODA or IASR align with and consider existing employment legislation.
Timing:
The SDC recommends the definition should be implemented 12 months from effective date.
Recruitment, assessment and selection
Recommendation 3: Recruitment, general (Section 22)
In order to fully inform job applicants, the SDC recommends Section 22, notice of availability of accommodations throughout recruitment by employers, should be expanded to include notice of availability of accommodation during employment.
The policy intent of this recommendation is to amend Section 22 notice, and not to expand other requirements of the accessible Employment Standards. The rationale of the recommendation is that this provides applicants better awareness of their right to accommodation during the employment lifecycle. The requirement to accommodate throughout employment under the Ontario Human Rights Code may currently not be clear.
Timing:
The change of expanded notice should be implemented 12 months from effective date.
The Committee recognizes the impact this change may have on the disability community, and the impact it may have on employers who may need to review their practices to ensure compliance with this existing obligation.
Recommendation 4: Recruitment, assessment or selection process (Section 23)
The SDC recommends guidelines and best practices should be developed on how to make the recruitment, assessment and selection processes and materials inclusive by design.
Some employers may need additional resources (e.g. how to have conversations with candidates/employees during the recruitment, assessment and selection processes). Government should provide the materials.
Timing:
To be completed within two years of the government accepting the recommendation.
Recommendation 5: Notice to successful applicants (Section 23 & 24)
Too often employers and candidates do not know when or how to have open and successful conversations to accommodate an individuals needs.
In order to address this gap the SDC recommends the government should review, strengthen and better promote guidelines and best practices to clarify requirements under sections 23 and 24.
Timing:
To be completed within two years of the government accepting the recommendation.
Workplace emergency response information
Recommendation 6: Emergency response information (Section 27)
The desired outcome of Section 27 is to ensure accessible emergency response information is available to all employees with disabilities in accessible formats, upon request.
Section 27 makes references to individualized emergency response information. The SDC believes the use of the word individualized may result in obligated organizations unnecessarily developing individualized emergency response plans. The SDC recommends the word individualized be removed from Section 27.
Questions of individualized emergency plans and emergency accommodations needs are best addressed as part of Section 28 requirements for individualized accommodation plans.
Recommendation Note: If the word individualized is removed from Section 27, consequential amendments will need to be made to Section 28(3).
Timing:
The change should be implemented 12 months from effective date. Individualized accommodation plans
Recommendation 7: Centralized portal for individual accommodation plans (Section 28)
The tools and resources that exist for individual accommodation plans are not easy to find and use outdated language. The SDC recommends the government should be responsible for a centralized portal for updated resources for individualized accommodation plan processes.
Note: The intent of the recommendation is that the tools and resources align with the OHRCs policies on the procedural duty to accommodate. In addition, the OHRC should be consulted to ensure harmonization.
Timing:
To be completed within two years of the government accepting the recommendation. Return to work
Recommendation 8: Monitoring of return to work processes (Section 29)
The Committee believes the desired outcome of this section is that employers create processes that better recognize the needs of persons returning to work. The return to work processes under other legislation are constantly evolving, so more information, research and public feedback may be required. The government should monitor the implementation of Section 29, including any gaps and challenges to inform the next review of the accessible Employment Standards.
Timing:
Monitoring to begin immediately upon the government accepting recommendation. Initial recommendations for public comment
Overview
Barriers to accessible employment can significantly affect the lives of people with disabilities, as employment is an integral factor to financial independence, personal satisfaction, involvement in the community, and more broadly, the economy. The objective of the Employment Standards, established in 2011 as part of the Integrated Accessibility Standards Regulation (IASR) under the Accessibility for Ontarians with Disabilities Act, 2005 (AODA) is to provide for accessibility across all stages of the employment life cycle, including recruitment, workplace accommodation, performance management, career development and advancement and return to work processes.
The original Employment SDC, formed in 2007, whose work informed the creation of the Employment Standards, established its long-term objective to set out policies, procedures and requirements for the identification, removal and prevention of barriers across all stages of the employment life cycle for persons with disabilities.
As prescribed in legislation, the Minister wrote to the SDC Chair to undertake specific work during the Employment Standards Review outlined in a mandate letter. This included: 1. re-examine the long-term objectives of the Standards;
2. if required, revise the measures, policies, practices and requirements to be implemented on or before January 1, 2025, and the timeframe for their implementation;
3. develop another proposed accessibility Standards containing modifications or additions that the SDC deems advisable for public comment; and 4. make such changes it considers advisable to the proposed accessibility Standards based on comments received and make recommendations for consideration.
Under this framework, the Minister asked that the review focus on requirements for sectors that were in effect for more than 24 months, as well as to identify any gaps that may remain in the standards, and to consider all possible solutions and tactics, including non-regulatory approaches. The review kicked off during the last year of implementation of the Standard, effective for small organizations January 1st, 2017. Potential focus areas for the review were based on pre-consultation feedback and included: clarity of requirements for individual accommodation plans desire for clear guidance materials
disclosure of disability as activation for support and requirements to apply
Each topic covered by the SDC included meaningful discussions benefitting from the diverse viewpoints and knowledge that the members and subject matter experts brought with them. In an effort to ensure a broad range of input, members worked first to identify themes, gaps and relevant issues associated with each topic under review. After each meeting members sought feedback from their respective communities and networks to bring back and share with the SDC at the following meeting. Input from committee networks and experts informed voting on recommended changes.
The SDC recognized early in the process that:
full implementation of the standard for organizations was as recent as January 2017 for small organizations
the Employment Standards are relatively new and a number of requirements have only just been implemented. In these cases, the effectiveness of the requirement in question was difficult to measure due to a lack of evidence based on early implementation of the Employment Standards
The SDC acknowledged that great strides have taken place in achieving accessible employment in Ontario, but there is still work to do. The SDCs discussions got to the core of how best to ensure persons with disabilities have accessible recruitment and employment experiences.
Throughout the SDCs discussions, members brought insightful feedback from their networks, organizations and communities, including lived experience. Through the consultation period following the posting of this report, the SDC hopes to receive feedback from an even wider group of persons with disabilities, obligated organizations, and the general public.
The recommendations voted on by the SDC included proposed regulatory changes and non-regulatory solutions. In some cases, the SDC decided to recommend no changes at this time, but provided commentary on the issue in question for future consideration.
Initial recommendations
The Employment Standards apply to paid employment, including but not limited to, full-time, part-time, apprenticeships and seasonal employment. The Standards set out requirements to help obligated organizations (for example, government, business and not-for-profit) remove employment barriers to create workplaces that are accessible and inclusive, allowing employees to reach their full potential. Since 2011 obligated organizations have been working to implement the requirements designed to achieve the long-term objective of the Employment Standards.
The following is the Employment Standards Development Committees initial advice and recommendations on the initial proposed Employment Standards, itemized and organized by focus area.
Improved clarity with the Ontario Human Rights Code
Recommendation 1: Improve and strengthen guidelines (accessible Employment Standards and the Ontario Human Rights Code)
Improved clarity between the AODAs Employment Standards and the Ontario Human Rights Codes duty to accommodate is required. The SDC recommends the government and the Ontario Human Rights Commission (OHRC) review and strengthen guidelines and clarification for employers with regard to the differences between the Ontario Human Rights Code and the AODAs Employment Standards.
Note: By review the Committee intends the government and the OHRC explore the causes of confusion regarding the relationship between the AODA and the Ontario Human Rights Code as a first step.
The SDC recognized clarity between the accessible Employment Standards and the Ontario Human Rights Code as a priority issue and chose to make it the first recommendation accordingly.
The Ontario Human Rights Code provides and protects for equal rights and opportunities, and freedom from discrimination for all persons, including disability. The Code protects rights in five social areas: accommodation (housing); contracts; employment; goods, services and facilities; and membership in unions, trade or professional associations.
In contrast, the Employment Standard of the AODA is a regulation that obligates employers to meet certain requirements for the purpose of ensuring accessibility throughout the employment life cycle. Where the Ontario Human Rights Code and other employment laws come into conflict, the Code will prevail.
The SDC received a presentation from the Ontario Human Rights Commission during SDC orientation and also received a presentation clarifying the differences between the Ontario Human Rights Code and the accessible Employment Standards.
The SDC engaged in discussions about the Ontario Human Rights Code (the Code) and its relationship to the Employment Standards, and SDC members sought feedback from their networks. During its fifth meeting, the SDC engaged in a dialogue with a representative from the Ontario Human Rights Commission. SDC members asked questions regarding outreach, education, training and the relationship between the accessible Employment Standards and the Ontario Human Rights Code. SDC members and the OHRC representative discussed confusion from the public regarding the relationship between the Code and the accessible Employment Standards. SDC members also raised questions about the Human Rights Tribunal of Ontario process.
This tribunal tasked with hearing complaints under the Ontario Human Rights Code. The tribunal has the power to grant damages and specific performance to remedy discriminatory acts.
Disability is the most cited ground of discrimination in complaints to the tribunal, making up 50 per cent of all complaints. Employment is the social area most cited by complaints, accounting for 70 per cent of all cited social areas (Social Justice Tribunal Ontario Annual Report).
Throughout their discussion, SDC members acknowledged that the IASR and the Employment Standards do not replace or affect legal rights or obligations that arise under the Ontario Human Rights Code and other laws relating to the accommodation of people with disabilities. The SDC believed the Human Rights Code seeks to guarantee at outcome (rights, employee accommodation) while the accessible Employment Standards require processes and procedures to assist in achieving that outcome.
The SDC also recognized that the Code or other applicable legislation may require additional accommodation measures that go beyond or are different from the standards established by the regulations of the AODA.
In their discussion the SDC concluded there is ultimately still confusion for organizations when they are considering their obligations under the accessible Employment Standards of the AODA and the Ontario Human Rights Code.
The SDC discussed the importance of clarity for employers interpreting the two laws. The SDC also discussed feedback from their networks. The tendency of networks (employers) was to be very familiar with the Code while not necessarily as familiar with their Employment Standards obligations.
The SDC expressed concern about frontline managers understanding the difference between the two laws or small organizations where one person may have responsibility for the Code, the Employment Standards and all other employment law compliance. The SDC expressed a desire in having employers understand how the Employment Standards complement the Ontario Human Rights Code.
Finally, the SDC would like to hear feedback during the public comment period on this issue and the initial recommendation.
Scope and interpretation
Recommendation 2: Scope and interpretation (Section 20)
The SDC believes a gap exists because a definition of employee is not included in the AODA and Integrated Accessibility Standards Regulation (IASR). The SDC recommends a definition of employee should be added to the AODA or IASR and be consistently applied throughout.
This definition should be consistent with the intent and purpose of the AODA and should be based on the employeremployee relationship.
Note: The SDC intends that any definition of employee added to the AODA or IASR harmonize with existing employment legislation.
The Employment Standard establishes scope and application in Section 20. The Standard applies to employees and does not apply to volunteers or other non-paid individuals. The term employee is not defined in the AODA or Employment Standards. The SDC considered both the definition of the term employee in the Standards and the application of the Standards to volunteers.
The definition of Employee in the Employment Standards
The term employee is not defined in the AODA or in the Employment Standards. The SDC considered whether this is a potential gap. Having one or more employees is the threshold which determines an organizations requirement to comply with the AODA and its standards. It is not always clear to organizations what the term employee means in the context of the AODA, and the Employment Standards. The SDC received examples and discussed the definition of employee in other similar employment legislation. The Ministry of Labour provided examples of the definition of employees from employment, occupational health and safety legislation.
The SDC recommends defining the term employee in the AODA or Employment Standards as this may provide greater clarity for organizations. Employee can be a term that may or may not encompass roles such as unpaid interns or contractors. The SDC also considered the need for the definition to be consistently applied throughout the IASR.
Application of the standard to volunteers
The SDC considered broadening the scope and application of the Employment Standards to volunteers. A vote was held but the motion did not pass. A significant discussion was held on this point.
The SDC heard evidence that 13.3 million peopleaccounting for 47% of Canadians aged 15 and overdid volunteer work in 2010. Volunteers devoted almost 2.07 billion hours to their volunteer activities, a volume of work that is equivalent to just under 1.1 million full-time jobs (Statistics Canada, 2010).The SDC also considered how volunteers may require accommodation and training in their duties.
The SDC raised concerns about the practicality of mirroring accessible Employment Standards requirements for volunteers when volunteer relationships do not always mirror employment relationships.
The SDC recognized the makeup of persons who volunteer is dynamic and fluid with some volunteer relationships lasting only a few hours (e.g. volunteering in a parade). Training of volunteers was a central part of the discussion.
The SDC voiced concern about adding regulatory burden to organizations (usually not for profit) that may rely on volunteer work. SDC members raised concerns about the implication of new training requirements for organizations that may have small staff but a very large number of volunteers being. The SDC also considered that the proposed Employment Standards under the Accessibility for Manitobans Act do not cover volunteers or unpaid workers.
It was also brought to the attention of the SDC that policy guidelines for the Integrated Accessibility Standards suggests that organizations may want to apply the Employment Standards requirements to volunteers as a best practice. The Guide to the Integrated Accessibility Standards Regulation provides the following regarding application of the Employment Standards to employees:
The Employment Standard applies to paid employees. This includes, but is not limited to, full-time, part-time, paid apprenticeships and seasonal employment.
Recruitment, general
Recommendation 3: Recruitment, general (Section 22)
In order to fully inform job applicants, Section 22 notice regarding availability of accommodations throughout recruitment by employers, should be expanded to include notice of availability of accommodation during employment.
The policy intent is to amend Section 22 notice and not to expand other requirements of the Employment Standards.
The SDC believes this will provide applicants better awareness, of their right to accommodation in a position they are considering applying for, or applying for. Current statements may be incomplete.
Section 22 of the accessible Employment Standards requires that every employer notify its employees and the public about the availability of accommodation for applicants with disabilities in its recruitment processes. Organizations are required to provide notice of availability of accommodations under the accessible Employment Standards at three phases (recruitment, selection, and notice to successful applicants). It is important to note employers have a duty to accommodate under the Ontario Human Rights Code.
The SDC considered that including notice of accommodation in job advertisements specifically referring to the recruitment stage would lead applicants to believe accommodation may only be available at the recruitment stage.
SDC members remarked that applicants may feel discouraged in applying to positions if they believed accommodations are only available during recruitment. The SDC discussed feedback from their networks and concluded that some persons with disabilities may not apply to jobs that do not give notice that accommodation is available throughout the entire employment relationship.
The SDC also noted the importance of accessible notice and accessible job board websites. For example the SDC discussed inaccessible job ads and job application software. SDC members raised the potential of software having embedded algorithmic bias which discriminates against persons with disabilities. SDC members recognized the importance of having these systems remove bias as they may scan out qualified candidates. The SDC suggested that the Standards Development Committee which is tasked with developing the Information and Communications standards under the AODA consider this issue.
The SDC believes that expanding the requirement to include the notice that accommodation is available throughout the employment experience would create a minimal burden to business while providing important awareness to job applicants as the requirement to accommodate is already provided under the Ontario Human Rights Code.
Recruitment, assessment or selection process
Recommendation 4: Recruitment, assessment or selection process (Section 23)
The SDC recommends that guidelines and best practices should be developed on how to make the recruitment, assessment and selection processes and materials inclusive by design.
Some employers may need additional resources (e.g. how to have conversations with candidates/employees during the recruitment, assessment and selection processes). Government should provide the materials.
Section 23(1) of the Employment Standards require that during a recruitment process, an employer shall notify job applicants, when they are individually selected to participate in an assessment or selection process, that accommodations are available upon request in relation to the materials or processes to be used.
Section 23(2) requires that if a selected applicant requests accommodation the employer shall consult with the applicant and provide or arrange for the provision of a suitable accommodation in a manner that takes into account the applicants accessibility needs due to disability.
When considering a recommendation, the SDC discussed how disclosure of disability may affect the consultation process between applicant and employer. The SDC recognized that some organizations and front line managers may not have the required training, comfort or familiarity to have productive conversations with applicants and/or employees with disabilities. The SDC noted the difficulty and potential discomfort for both candidates and employers in initiating discussions.
The intent of the SDCs recommendation is that guidance is provided to assist employers in designing accessible recruitment, assessment, and selection materials, as well as tools and processes to ensure accessibility from the beginning.
The SDC did not choose to propose a regulatory recommendation to address this gap because the committee felt the issue primarily dealt with attitudinal bias that requires a broader cultural shift beyond regulation (e.g., guidance, education and awareness).
Notice to successful applicants
Recommendation 5: Notice to successful applicants (Section 23 & 24)
Too often employers and candidates do not know when or how to have open and successful conversations to accommodate an individuals needs. In order to address this gap the SDC recommends the government should review, strengthen and better promote guidelines and best practices to clarify requirements under sections 23 and 24.
Section 24 of the accessible Employment Standards require every employer, when making offers of employment, to notify the successful applicant of its policies for accommodating employees with disabilities.
When reviewing Section 24, the SDC revisited the issue of disclosure in both Section 23 and 24 jointly. The SDC recognized that in order to receive accommodation a person with a disability may have to disclose this information to the employer themselves, particularly in the circumstances of disabilities that are not readily or easily identifiable. Disclosure and employers awareness of a need for accommodation is the trigger which brings about accommodation. Without disclosure employers may not be aware of the need to accommodate. On the other side of employee disclosure, SDC members pointed out the fear of discrimination from employers when persons with disabilities disclose their need for accommodation. SDC members recognized that some persons with disabilities may feel they will not be treated equally or discriminated against when disclosing their need.
The SDC also discussed the desire of employers to avoid violating applicant rights under the Ontario Human Rights Code.
The SDC also acknowledged one of the challenges for persons with disabilities and organizations is that an applicant or employee may not know what accommodations they need in their work environment, or how to ask for them. The SDC believed that guidance was needed for both employers and applicants/employees in having these conversations with employers. The SDC believes current guidance focuses exclusively on employer obligations.
Workplace emergency response information
Recommendation 6: Workplace emergency response information (Section 27)
The desired outcome of Section 27 is to ensure accessible emergency response information is available to all employees with disabilities in accessible formats, upon request.
Section 27 makes references to individualized emergency response information. The SDC believes the use of the word individualized may result in obligated organizations unnecessarily developing individualized emergency response plans. The SDC recommends the word individualized be removed from Section 27.
Questions of individualized emergency plans and emergency accommodations needs are best addressed as part of Section 28 requirements for individualized accommodation plans.
Recommendation note: If the word individualized is removed from Section 27, consequential amendments will need to be made to Section 28(3).
Under Section 27 of the Employment Standards employers are required to provide individualized workplace emergency response information under the following conditions:
when the employees disability is such that the information is necessary; and
the employer is aware of the need for accommodation because of the employees disability.
Employers shall provide the information required under this section as soon as practicable after the employer becomes aware of the need for accommodation due to the employees disability.
Before developing a recommendation for Section 27 of the Employment Standards, the SDC requested to hear from a first responder organization, and/or experts with practical experience and knowledge in emergency situations.
The SDC heard a presentation provided by a Deputy Fire Chief from the City of Toronto. The SDC was informed about the role of firefighters and the requirements of fire safety plans under the Ontario Fire Code. The presenter explained that the role of firefighters is not to evacuate buildings but rather provide rescue services (when necessary) and to put out fires.
The presenter explained that fire safety plans vary greatly between buildings and depend on the age, nature of type of facility. The presenter also clarified that fire safety plans are the responsibility of the owner of the building. The definition of owner includes the registered owner but also anyone having care or control of any part of the property, so it may encompass tenants.
The presenter also provided that the best practice for fire safety plans is to keep a list of persons with disabilities (this is not required by the Fire Code) and to have a dedicated team to manage plans, particularly in situations where the owner or tenant has multiple buildings. The presenter also told the SDC the Fire Code does not require individual plans for persons with disabilities.
The SDC engaged in a dialogue with the presenter and continued discussion and questions. In their discussion the SDC noted confusion between the term information and the term plan. The SDC also viewed guidance material for Section 27 (e.g., sample workplace emergency information) and concluded the guidance material is likely to lead organizations and employers to create plans instead of information.
For example the SDC considered individualized accommodation plans, specifically, section 28(3)(b) which states if required include individualized workplace emergency response information, as described in section 27. The SDC considered the potential redundancy of organizations mistakenly creating individual plans instead of information under Section 27. The SDC expressed a desire for more clarity.
The SDC also reviewed feedback from their networks that the requirement for individualized emergency response information may be onerous in multi-facility work arrangements where one individual may work in several offices or locations (for example hospitals, university campuses).
Despite this complexity, the SDC felt safety was the highest priority and organizations must meet their obligated requirements under the Employment Standards and safety standards regardless of their size or multiple work locations.
The SDC continued to have a discussion about compliance with the requirement and explained even with high compliance rates concerns remained about whether Section 27 was achieving the intended outcome. SDC members believed more clarity was required in the Employment Standards to achieve this outcome.
Individualized accommodation plans
Recommendation 7: Centralized portal for individual accommodation plans (Section 28)
The tools and resources that exist are not easy to find and use out-dated language. The SDC recommends the government should be responsible for a centralized portal for updated resources for individualized accommodation plan processes.
Note: The intent of the recommendation is that the tools and resources align with the OHRCs policies on the procedural duty to accommodate. In addition, the OHRC should be consulted to ensure harmonization.
Section 28 of the accessible Employment Standards requires employers, other than employers that are small organizations (as defined by the IASR), to develop and have in place a written process for the development of documented individual accommodation plans for employees with disabilities.
Section 28(2) lays out the process for the development of a plan which must include the following elements:
1. The manner in which an employee requesting accommodation can participate in the development of the individual accommodation plan. 2. The means by which the employee is assessed on an individual basis.
3. The manner in which the employer can request an evaluation by an outside medical or other expert, at the employers expense, to determine if and how accommodation can be achieved.
4. The manner in which the employee can request the participation of a representative from their bargaining agent, where the employee is represented by a bargaining agent, or other representative from the workplace, where the employee is not represented by a bargaining agent, in the development of the accommodation plan.
5. The steps taken to protect the privacy of the employees personal information.
6. The frequency with which the individual accommodation plan will be reviewed and updated and the manner in which it will be done.
7. If an individual accommodation plan is denied, the manner in which the reasons for the denial will be provided to the employee.
8. The means of providing the individual accommodation plan in a format that takes into account the employees accessibility needs due to disability
To start their discussion the SDC reviewed the policy intent of Section 28 which states individual accommodation plans under the Employment Standards are a formal way of recording and reviewing the workplace-related accommodations that an employer will provide to an employee with a disability. Accommodation plans are living documents. They are required to be reviewed and updated so that they remain effective and up-to-date.
The SDC considered both the requirement for individualized accommodation plans and the elements of the plan. The SDC also revisited their discussion under Section 27 and emergency response information. More broadly, the SDC noted the importance of recognizing connections between each requirement in the Employment Standards and the elements of the individualized accommodation plan (for e.g., information regarding accessible formats). The SDC acknowledged the individualized accommodation plan requires a robust and meaningful discussion between employer and employee about individual needs. The SDC once again revisited the theme of disclosure as a trigger for accommodation. The SDC continued to discuss the importance of organizations having a clear understanding of their obligations.
The SDC reflected on whether the distinction between individualized accommodation plans and the duty to accommodate under the Ontario Human Rights Code is clear to employers. Based on their stakeholder feedback SDC felt there may still be a lack of clarity for organizations in meeting their requirements under Section 28.
In order to help understand implementation, the SDC reviewed guidelines and resources that provided templates meant for organizations and employers. After discussion and reviewing materials, the SDC expressed a desire for guidelines that were written in plain language, inclusive and up-to-date. The SDC also discussed the value of up-to-date resources that can be found more easily than current materials. The SDC believes best practices evolve frequently and resources should remain up-to-date and centralized to reflect this evolution.
The SDC considered combining other Employment Standards requirements into individualized accommodation plans. Namely, the SDC reflected on performance management, (S.30) career development/advancement (S.31) and redeployment (S.32).The SDC concluded there is value in keeping these requirements separate. (See below for a discussion on Sections 30, 31 and 32.)
With respect to performance management, the SDC commented that a separate section on performance management, such as the current one, outside the individual accommodation plan, provides an opportunity for the employer and employee to identify accommodations or accommodation needs that may have not been apparent to employee or employee before.
Return to work process
Recommendation 8: Monitoring implementation of return to work processes (Section 29)
The Committee believes the desired outcome of Section 29 is that employers create processes that better recognize the needs of persons returning to work. The return to work processes under other legislation are constantly evolving, so more information, research and public feedback may be required. The government should monitor the implementation of Section 29, including any gaps and challenges to inform the next review of the accessible Employment Standards.
Section 29 of the accessible Employment Standards requires every employer, other than small organizations, to develop and have in place a return to work process for its employees who have been absent from work due to a disability and require disability-related accommodations in order to return to work. Employers are also required to keep the process up-to-date, outline the steps the employer will take to facilitate the return of the employee and use documented individual accommodation plans as part of the process.
Section 29(3) states The return to work process referenced in this section does not replace or override any other return to work process created by or under any other statute.
The SDC considered the intent of the requirement. The intent of the requirement is that employers will have in place a documented process for supporting employees who return to work after being away for reasons related to their disabilities. If an individuals illness or injury is covered by the return to work provisions of another piece of legislation, then the SDC suggested that the other Acts return to work process should apply.
The SDC discussed potential confusion and burden for employers, as obligated organizations may have to maintain and develop different processes or forms for different return to work situations. The SDC discussed their stakeholder feedback and confidential stakeholder feedback the Accessibility Directorate had gathered. The SDC recognized that most employers already have a return to work process in place and are familiar with other return to work legislation and related requirements and processes.
The Committee considered that return to work processes under other legislation have key differences relating to insurance and compensation. The Committee also recognized the upcoming work of organizations on making unified return to work documents.
Note for Sections 30, 31 and 32
The SDC did not provide regulatory recommendations for Section 30, 31 and 32. However the SDC had significant discussions on these requirements. The SDC provided the following comment:
One of the aims of the regulation is culture change, thinking about diversity and inclusion by design. Members of the community are facing barriers today and it can be disheartening for them to be told to wait for culture change. This reality is why regulatory change is often pushed for. The goal is to make things better, not to stop things.
The SDC was also hesitant in folding additional requirements into individual accommodation plans because Section 28 currently does not apply to small employers. Employment Standards requirements for Section 30 (performance management), 31 (career development) and 32 (redeployment) apply to all employers who use those practices regardless of the number of employees the organization employs. The SDC noted the importance of accessible performance, career development and redeployment and also spoke at length about a broader cultural change that ensures persons with disabilities have opportunities to advance in their careers based on merit and without discrimination.
The Committee also discussed the potential for discrimination in career development and performance management. The Committee agreed on the importance in open and honest discussion between employer and employee in making sure employers meet accommodation needs. Strong communication may help ensure performance or career development can be assessed for employees fairly and on merit.
Conclusion
The Committee looks forward to the public feedback that will follow the posting of these initial recommendations, and to considering this input before final recommendations are made. Published: March 20, 2018
^2011 Employment Accessibility Standard Provisions of the Integrated Accessibility Standards Regulation
EMPLOYMENT STANDARDS
Scope and interpretation
20. (1) The standards set out in this Part apply to obligated organizations that are employers and, (a) apply in respect of employees; and
(b) do not apply in respect of volunteers and other non-paid individuals. O. Reg. 191/11, s. 20 (1).
(2) In this Part, a reference to an employer is a reference to an obligated organization as an employer unless the context determines otherwise. O. Reg. 191/11, s. 20 (2). Schedule
21. Unless otherwise specified in a section, obligated organizations, as employers, shall meet the requirements set out in this Part in accordance with the following schedule:
1. For the Government of Ontario and the Legislative Assembly, January 1, 2013.
2. For large designated public sector organizations, January 1, 2014.
3. For small designated public sector organizations, January 1, 2015. 4. For large organizations, January 1, 2016.
5. For small organizations, January 1, 2017. O. Reg. 191/11, s. 21. Recruitment, general
22. Every employer shall notify its employees and the public about the availability of accommodation for applicants with disabilities in its recruitment processes. O. Reg. 191/11, s. 22.
Recruitment, assessment or selection process
23. (1) During a recruitment process, an employer shall notify job applicants, when they are individually selected to participate in an assessment or selection process, that accommodations are available upon request in relation to the materials or processes to be used. O. Reg. 191/11, s. 23 (1).
(2) If a selected applicant requests an accommodation, the employer shall consult with the applicant and provide or arrange for the provision of a suitable accommodation in a manner that takes into account the applicants accessibility needs due to disability. O. Reg. 191/11, s. 23 (2).
Notice to successful applicants
24. Every employer shall, when making offers of employment, notify the successful applicant of its policies for accommodating employees with disabilities. O. Reg. 191/11, s. 24. Informing employees of supports
25. (1) Every employer shall inform its employees of its policies used to support its employees with disabilities, including, but not limited to, policies on the provision of job accommodations that take into account an employees accessibility needs due to disability. O. Reg. 191/11, s. 25 (1).
(2) Employers shall provide the information required under this section to new employees as soon as practicable after they begin their employment. O. Reg. 191/11, s. 25 (2).
(3) Employers shall provide updated information to its employees whenever there is a change to existing policies on the provision of job accommodations that take into account an employees accessibility needs due to disability. O. Reg. 191/11, s. 25 (3).
Accessible formats and communication supports for employees
26. (1) In addition to its obligations under section 12, where an employee with a disability so requests it, every employer shall consult with the employee to provide or arrange for the provision of accessible formats and communication supports for,
(a) information that is needed in order to perform the employees job; and
(b) information that is generally available to employees in the workplace. O. Reg. 191/11, s. 26 (1).
(2) The employer shall consult with the employee making the request in determining the suitability of an accessible format or communication support. O. Reg. 191/11, s. 26 (2).
Workplace emergency response information
27. (1) Every employer shall provide individualized workplace emergency response information to employees who have a disability, if the disability is such that the individualized information is necessary and the employer is aware of the need for accommodation due to the employees disability. O. Reg. 191/11, s. 27 (1).
(2) If an employee who receives individualized workplace emergency response information requires assistance and with the employees consent, the employer shall provide the workplace emergency response information to the person designated by the employer to provide assistance to the employee. O. Reg. 191/11, s. 27 (2).
(3) Employers shall provide the information required under this section as soon as practicable after the employer becomes aware of the need for accommodation due to the employees disability. O. Reg. 191/11, s. 27 (3).
(4) Every employer shall review the individualized workplace emergency response information,
(a) when the employee moves to a different location in the organization;
(b) when the employees overall accommodations needs or plans are reviewed; and
(c) when the employer reviews its general emergency response policies. O. Reg. 191/11, s. 27 (4). (5) REVOKED: O. Reg. 165/16, s. 8.
Documented individual accommodation plans
28. (1) Employers, other than employers that are small organizations, shall develop and have in place a written process for the development of documented individual accommodation plans for employees with disabilities. O. Reg. 191/11, s. 28 (1).
(2) The process for the development of documented individual accommodation plans shall include the following elements:
1. The manner in which an employee requesting accommodation can participate in the development of the individual accommodation plan.
2. The means by which the employee is assessed on an individual basis.
3. The manner in which the employer can request an evaluation by an outside medical or other expert, at the employers expense, to assist the employer in determining if accommodation can be achieved and, if so, how accommodation can be achieved.
4. The manner in which the employee can request the participation of a representative from their bargaining agent, where the employee is represented by a bargaining agent, or other representative from the workplace, where the employee is not represented by a bargaining agent, in the development of the accommodation plan.
5. The steps taken to protect the privacy of the employees personal information.
6. The frequency with which the individual accommodation plan will be reviewed and updated and the manner in which it will be done.
7. If an individual accommodation plan is denied, the manner in which the reasons for the denial will be provided to the employee.
8. The means of providing the individual accommodation plan in a format that takes into account the employees accessibility needs due to disability. O. Reg. 191/11, s. 28 (2). (3) Individual accommodation plans shall,
(a) if requested, include any information regarding accessible formats and communications supports provided, as described in section 26;
(b) if required, include individualized workplace emergency response information, as described in section 27; and
(c) identify any other accommodation that is to be provided. O. Reg. 191/11, s. 28 (3).
Return to work process
29. (1) Every employer, other than an employer that is a small organization,
(a) shall develop and have in place a return to work process for its employees who have been absent from work due to a disability and require disability-related accommodations in order to return to work; and (b) shall document the process. O. Reg. 191/11, s. 29 (1). (2) The return to work process shall,
(a) outline the steps the employer will take to facilitate the return to work of employees who were absent because their disability required them to be away from work; and
(b) use documented individual accommodation plans, as described in section 28, as part of the process. O. Reg. 191/11, s. 29 (2).
(3) The return to work process referenced in this section does not replace or override any other return to work process created by or under any other statute. O. Reg. 191/11, s. 29 (3).
Performance management
30. (1) An employer that uses performance management in respect of its employees shall take into account the accessibility needs of employees with disabilities, as well as individual accommodation plans, when using its performance management process in respect of employees with disabilities. O. Reg. 191/11, s. 30 (1). (2) In this section,
performance management means activities related to assessing and improving employee performance, productivity and effectiveness, with the goal of facilitating employee success. O. Reg. 191/11, s. 30 (2).
Career development and advancement
31. (1) An employer that provides career development and advancement to its employees shall take into account the accessibility needs of its employees with disabilities as well as any individual accommodation plans, when providing career development and advancement to its employees with disabilities. O. Reg. 191/11, s. 31 (1). (2) In this section,
career development and advancement includes providing additional responsibilities within an employees current position and the movement of an employee from one job to another in an organization that may be higher in pay, provide greater responsibility or be at a higher level in the organization or any combination of them and, for both additional responsibilities and employee movement, is usually based on merit or seniority, or a combination of them. O. Reg. 191/11, s. 31 (2).
Redeployment
32. (1) An employer that uses redeployment shall take into account the accessibility needs of its employees with disabilities, as well as individual accommodation plans, when redeploying employees with disabilities. O. Reg. 191/11, s. 32 (1). (2) In this section,
redeployment means the reassignment of employees to other departments or jobs within the organization as an alternative to layoff, when a particular job or department has been eliminated by the organization. O. Reg. 191/11, s. 32 (2).
For More Information About the AODA Alliance
To sign up for or unsubscribe from Accessibility for Ontarians with Disabilities Act Alliance Updates, send your request to us at aodafeedback@gmail.com In late December 2017, our email list for these Updates unfortunately crashed. We have rebuilt it. In case you fell off the list but want to return, just email to ask us to sign you up. In case you had wanted to be removed from the list, but were accidentally restored to it, just email us to ask to be removed! Sorry for any inconvenience.
You can always send your feedback to us on any AODA and accessibility issue at aodafeedback@gmail.com
Have you taken part in our Picture Our Barriers campaign? If not, please join in! You can get all the information you need about our Picture Our Barriers campaign by visiting www.aodaalliance.org/2016
To sign up for, or unsubscribe from AODA Alliance e-mail updates, write to: aodafeedback@gmail.com
We encourage you to use the Governments toll-free number for reporting AODA violations. We fought long and hard to get the Government to promise this, and later to deliver on that promise. If you encounter any accessibility problems at any large retail establishments, it will be especially important to report them to the Government via that toll-free number. Call 1-866-515-2025.
Please pass on our email Updates to your family and friends.
Check out our new and expanded collection of online videos about the history, strategies and accomplishments of Ontario’s non-partisan grassroots accessibility campaign, available at:
https://www.aodaalliance.org/whats-new/the-aoda-alliance-launches-part-2-of-its-series-of-online-videos-on-the-campaign-for-accessibility-to-mark-the-23rd-anniversary-of-ontarios-grassroots-campaign-for-disability-accessibility/ Why not subscribe to the AODA Alliances YouTube channel, so you can get immediate alerts when we post new videos on our accessibility campaign. https://www.youtube.com/user/aodaalliance
Please “like” our Facebook page and share our updates: https://www.facebook.com/Accessibility-for-Ontarians-with-Disabilities-Act-Alliance-106232039438820/
Follow us on Twitter. Get others to follow us. And please re-tweet our tweets!! @AODAAlliance
Learn all about our campaign for a fully accessible Ontario by visiting http://www.aodaalliance.org