Massive AODA employer obligations in Ontario come into effect Jan. 1, 2017
excerpt from www.lexology.com, by Gowling WLG – P.A. Neena Gupta
December 19 2016
It’s less than a week until Christmas, and your “to do” list probably includes holiday cards, baking, mailing gifts, decorating the tree and wrapping presents. Pity, then, the Ontario human resource managers who are scrambling to comply with the significant additional obligations imposed by the Accessibility for Ontarians with Disabilities Act (AODA) and its regulations, which will apply to small businesses (in addition to all other businesses) as of Jan. 1, 2017.
This article provides a short list of all the requirements that must be met by all Ontario businesses only seven days after Christmas. Note that employers who are regulated federally may be exempt from some of the AODA requirements.
While large employers (over 50 employees in Ontario) have been required to comply with the Employment Standards regulations, being Part III of the Integrated Accessibility Standards, small employees (1-49 employees in Ontario) now have to deal with a complex set of requirements aimed at reducing barriers facing people with disabilities in the workplace. All large Ontario employers should already be fully compliant with the Employment Standards, unless they are federally regulated.
Effectively, all Ontario employers with one employee in Ontario need to comply with the Employment Standards. What does this entail? As of Jan. 1, 2017, these employers must:
- Notify their employees and the public about the availability of accommodation in the company’s recruitment processes. A great technique is to ensure that the availability of accommodation is made part of your standard job advertisements and on any job posting. Example:
XYZ encourages applications from all qualified candidates. XYZ has a great record of accommodating persons with disabilities. Contact Jane Doe at email@example.com or 416.862.xxxx if you need accommodation at any stage of the application process or want more information on our accommodation policies.
- Notify candidates about the availability of accommodation during the selection and assessment process, in cooperation with the candidate. Example:
You have been short-listed for the position of ______________. You are scheduled for a written aptitude test on __________________. Please note that if you require accommodation during the interview or selection process, contact Jane Doe at firstname.lastname@example.org or 416.862.xxxx.
- Ensure offers of employment to the successful candidates contain explicit notification of the company’s policies regarding accommodation. Example:
The Company is committed to the success of all its employees. If you feel you need accommodation because of illness or disability, please do not hesitate to contact Human Resources at __________________ at your earliest convenience. You will also be briefed on the Company’s policies, including its policies regarding human rights, accommodation and the Accessibility for Ontarians with Disabilities Act (“AODA”) during your orientation process.
- Advise all employees of the company’s policies relating to: supporting employees with disabilities, including, but not limited to, the provision of job accommodations that take into account an employee’s accessibility needs due to disability. New employees should be advised of these policies during the orientation period and should be directed to any written or intranet resources as soon as possible.
- On request, provide any information that an employee requires to perform his/her job in an accessible format. Collaborate with the employee to identify an effective accessible format.
- On request, provide any information that is generally available to employees in an accessible format. Collaborate with employees to identify an effective accessible format.
The most complex piece of the Employment Standards is the additional procedural and documentary obligations with respect to any request for accommodation and/or return to work.
- Employers must create an explicit written process for the development of a written individual accommodation plan (IAP) for employees with disabilities. This process must address the following points:
- How an employee can request accommodation and how the employee can participate in the development of the IAP
- How an employee can be assessed on an individual basis
- How an 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 may be achieved
- How an employee can request help from aunion bargaining agent and/or a co-worker in the development of the IAP
- How the employee’s private information will be protected
- How and when IAPs will be reviewed and updated
- If an IAP is denied, how the reasons for the denial will be provided to the employee
- How the IAP can be presented in a format that takes into account the employee’s accessibility needs due to disability
There are excellent precedents that are available, and we often refer readers to the free Accessibility Toolkit produced by the Conference Board of Canada. Nonetheless, these precedents often assume that employers are blessed with experienced human resources departments and are unwieldy for small employers. The reality is that small employers will likely need external HR consultants to navigate through the process.
- Note that IAPs should also:
- Include any information regarding accessible formats and communications supports that could be provided, if applicable or requested
- Include individualized workplace emergency response information, if warranted
- Clearly identify any other accommodation that is to be provided
- Employers must also have a written return-to-work policy for employees who have been absent from work due to an illness or disability and require accommodation to facilitate the return-to-work. For most employers, it makes sense to amalgamate, as best possible, the workers’ compensation and the AODA return-to-work processes. This return-to-work policy should outline the process in some detail and include:
- An outline of 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
- A reference to the use of written IAPs
- Accommodation is not a static process. Throughout the employee’s career, Employers must also take into account an employee’s disability, accessibility needs and/or any relevant IAP needs. The Employment Standard specifically requires consideration of any IAP and/or accessibility needs in the following circumstances:
- Performance management;
- Career development and advancement
- Redeployment (in the context of avoiding lay-offs or job loss)
What is next?
Companies should check whether they are obligated to file an Accessibility Report with the government of Ontario on or before Dec. 31, 2017.
AODA compliance means that your workplace is taking down barriers faced by individuals with disabilities. While this article deals with the employment standards under the AODA, employers are expected to have met a number of other requirements over the last five years and will continue to have increasing obligations in the next few years. These requirements include areas such as customer service, training, website accessibility and the built environment.
The Ontario government wants to create a truly inclusive workplace for all individuals.