This is the third and final installment in a three-part series of articles focused on employers’ duties under Ontario’s Accessibility for Ontarians with Disabilities Act, 2005 (AODA). Part one addressed the scope and applicability of the law to various businesses. addressed what a business must do to comply with the customer service standards under Ontario’s Accessibility for Ontarians with Disabilities Act, 2005. In this article, we examine the Integrated Accessibility Standards of the AODA as they apply to employment.
The Integrated Accessibility Standards regulation under Ontario’s Accessibility for Ontarians with Disabilities Act, 2005, contains three standards: the Information and Communication Standards (part II); the Employment Standards (part III); and the Transportation Standards (Part IV). The Information and Communication Standards and the Employment Standards are applicable to most Ontario businesses, whereas the Transportation Standards apply to transportation providers and related entities, such as municipalities and school boards (and will not be discussed in this article).
Employers’ Obligations Under the Information & Communication Standards and Employment Standards
Ontario employers have various obligations under the Employment Standards and the Information and Communication Standards. These obligations depend on the type of employer and the number of employees employed by the organization.
For private-sector employers with fewer than 50 employees in Ontario the following obligations apply:
- The organization must “develop, implement and maintain policies governing how the organization achieves or will achieve accessibility” through meeting the requirements that apply to it under the Integrated Accessibility Standards.
- The organization must “have regard to the accessibility for persons with disabilities when designing, procuring or acquiring self-service kiosks.”
- All employees and volunteers (and any other person who provides goods, services, or facilities on behalf of the organization) must be trained in the requirements of the accessibility standards and Ontario’s Human Rights Code in a manner that is appropriate to the duties of the person. Training must be provided if/when there are changes to the organization’s policies.
- The organization’s process for receiving and responding to feedback shall ensure that the process is “accessible to persons with disabilities by providing or arranging for the provision of accessible formats and communications supports, upon request.”
- The organization must “notify the public about the availability of accessible formats and communication supports.”
- If the organization “prepares emergency procedures, plans or public safety information and makes the information available to the public, the organization shall provide the information in an accessible format or with appropriate communication supports, as soon as practicable, upon request.”
- The organization must “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 employee’s disability.”
Starting January 1, 2017, employers with fewer than 50 employees in Ontario will have an expanded list of obligations, including most of the obligations imposed on large employers.
As of January 1, 2016, large employers with 50 or more employees in Ontario have all of the obligations listed above for small employers, as well as the following additional obligations:
- The organization’s accessibility policy must be in writing, must “include a statement of organizational commitment to meet the accessibility needs of persons with disabilities in a timely manner,” and must be available publicly and in an accessible format upon request.
- The organization must “establish, implement, maintain and document a multi-year accessibility plan, which outlines the organization’s strategy to prevent and remove barriers” to accessibility, and to meet its requirements under the Integrated Accessibility Standard. This plan must be posted on the organization’s website, if any. It must be reviewed and updated at least once every five years.
- A record must be kept of all training provided, including the dates on which the training was provided and the number of individuals to whom it was provided.
- Upon request, the organization must “provide or arrange for the provision of accessible formats and communication supports for persons with disabilities, in a timely manner that takes into account the person’s accessibility needs due to disability, and at a cost that is no more than the regular cost charged to other persons.” The organization must “consult with the individual making the request in determining the suitability of an accessible format or communication support.”
- Internet websites and web content must conform with World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0 Level AA (with limited exceptions).
- The organization must “notify its employees and the public about the availability of accommodation for applicants with disabilities in its recruitment processes.”
- “During a recruitment process [the organization must] 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.” If accommodation is requested, the organization must consult with the applicant and provide a suitable accommodation, taking into account the applicant’s accessibility needs.
- “When making offers of employment, [the organization must] notify the successful applicant of its policies for accommodating employees with disabilities.”
- The organization must inform its employees of its policies used to support employees with disabilities (including job accommodations). This information must be provided as soon as practicable after an employee begins his or her employment and updated information shall be provided to employees whenever there is a change to the organization’s policies.
- Upon request, the organization must “consult with the employee to provide or arrange for the provision of accessible formats and communication supports for information that is needed in order to perform the employee’s job, and [any other] information generally available to employees in the workplace.”
- The organization must “develop and have in place a written process for the development of documented individual accommodation plans [(IAP)] for employees with disabilities.” The process must include and address a number of elements:
- how an employee can request accommodation and how the employee can participate in the development of an IAP;
- “the means by which the employee is assessed on an individual basis”;
- “the manner in which the employer can request an evaluation by an outside medical or other expert, at the employer’s expense, to assist the employer in determining if accommodation can be achieved and, if so, how accommodation can be achieved”;
- if applicable, the manner in which an employee can request help from his or her union bargaining agent or other representative, in the development of the IAP;
- the steps taken to protect the employee’s private information;
- the manner and frequency with which IAPs will be reviewed and updated;
- “if an [IAP] is denied, the manner in which the reasons for the denial will be provided to the employee”; and
- “the means of providing the [IAP] in a format that takes into account the employee’s accessibility needs due to disability.”
An IAP must also include any information regarding accessible formats and communication supports available to the employee to perform his or her job (or to employees generally), any individualized workplace emergency response information (if applicable), and identify any other accommodation that is to be provided to the employee.
- The organization must develop and document a return-to-work process for employees who have been absent due to disability and require accommodation in order to return to work. The return-to-work process shall outline the steps the employer will take to facilitate the return to work and use any IAPs as part of the process.
- An organization that uses performance management must take into account accessibility needs and IAPs when using its performance management processes in respect of employees with disabilities
- An organization that provides career development and advancement to its employees must take into account the accessibility needs of its employees with disabilities as well as any IAPs when providing career development and advancement.
- An employer that uses redeployment (i.e., reassigning employees within the organization as an alternative to layoff) shall take into account the accessibility needs of its employees with disabilities, as well as any IAPs.
Unlike small employers, large employers must file accessibility reports under section 14 of the AODA. A report is required to be filed every 3 years, starting from December 31, 2014.
The Toronto office of Ogletree Deakins will continue to monitor developments with respect to the Accessibility for Ontarians with Disabilities Act, 2005 and its compliance requirements