As more and more provinces consider implementing proactive accessibility legislation like Ontario's Accessibility for Ontarians with Disabilities Act ("AODA"), we want to remind you not to forget to add ongoing compliance to your list of New Year's Resolutions. Employers outside of Ontario and federally-regulated employers are not required to comply with the AODA. However, employees, customers and human rights adjudicators across the country are increasingly aware of accessibility issues and look to the AODA as a best practice. Manitoba is in the process of rolling out similar legislation which will start impacting the private sector in 2018. British Columbia is in the process of rolling out its Accessibility 2024 initiative. And Nova Scotia has announced that it too has plans to introduce accessibility legislation.
Obligations for Large Organizations
Starting January 1, 2016 provincially-regulated organizations with 50 or more employees in Ontario will face new requirements to promote accessibility in the workplace, including requirements to:
- Take steps to make hiring accessible by letting job applicants know – before they apply, such as in the job posting, and when they are selected for an interview – that your organization provides accommodations for applicants with disabilities
- Tell employees about your policies for supporting employees with disabilities
- Provide employees who have disabilities accessible workplace information (i.e. information that they require to do their jobs, information that is generally available to employees, such as company policies, and information about emergency procedures), upon request
- Develop a written process for creating documented accommodation plans for employees with disabilities. Including how an employee can ask for a representative from the workplace (or in the case of a unionized employee, a union representative) to participate in the accommodation plan process
- Provide a written plan for employees returning to work from a disability related absence who require accommodation
- Consider the needs of your employees with disabilities in performance management, career development and job changes
- Let the public and employees know that they can obtain any written information and other communications produced by your organization in an accessible format, upon request. For example, your organization could provide a notice on its website advising individuals who to contact to request accessible information/communications. Organizations should establish an internal process for managing requests and working with individuals to provide information/communication in a manner that is timely and is responsive to individual accessibility needs
Obligations for Small Organizations
By January 1, 2016 provincially- regulated organizations with more than one but less than 50 employees in Ontario ("Small Organizations") will be required to provide training to all employees and volunteers on Ontario's accessibility laws, including the Ontario Human Rights Code. The Province has developed and made available free resources for employers.
Small Organizations will also be required to ensure that existing public feedback processes consider accessibility. For example, rather than only receiving feedback by telephone, an organization could revise its policies so that it can also receive feedback by email and in-person. More information on the training requirement and on the feedback requirement.
Achieving AODA Compliance
We have previously noted that the Accessibility Directorate of Ontario (the "Directorate") has stepped up enforcement of AODA compliance reporting. Over the past year many of our clients have received notices inquiring about compliance (for those that have yet to file their online reports) or audit requests, seeking proof of compliance.
Many employers already have processes in place to achieve the same goals as these new accessibility requirements. For example, many employers already create accommodation plans for employees with disabilities. However, the requirements under the AODA go beyond what most employers already have in place by requiring written evidence that the employer and employee have turned their minds to specified procedural issues that arise during the accommodation discussion.
While the requirements of the AODA do not override an organization's rights and responsibilities to accommodate to the point of undue hardship under human rights legislation, they are being cited by adjudicators as the minimum standard for accessibility. Employees and customers across the country are also increasingly aware of their accessibility rights and have heightened expectations of organizations to accommodate disability-related needs. As a result, it is important for all employers – including those that do not operate in Ontario – to keep up-to-date on the AODA requirements.