Canada: AODA — New Employment Standards For Access

Copyright 2011, Blake, Cassels & Graydon LLP

Originally published in Blakes Bulletin on Labour & Employment, June 2011

The Accessibility for Ontarians with Disabilities Act, 2005 (AODA) is Ontario legislation adopted in 2005 with the goal of making Ontario completely accessible for individuals with disabilities by 2025. The legislation mandated the creation of standard development committees in the five general areas addressed by AODA: Customer Service; Transportation; Built Environment; Information and Communications; and Employment. The committees were tasked with creating standards in each of the respective areas to be submitted to the government for enactment as regulations, following a period of public consultation. Collectively, the standards are meant to create a set of obligations that will serve to remove and prevent barriers that hinder persons with disabilities from participating fully in Ontario society.

THE INTEGRATED STANDARD

The AODA standard relating to customer service came into effect in 2008, and all service providers must comply with the standard by January 1, 2012. For more information regarding the customer service standard, please see our March 2011 Blakes Bulletin on AODA.

Following a number of revisions and public consultations, the draft transportation, information and communications, and employment standards were integrated into one standard (the Integrated Standard). The Integrated Standard was filed by the Ontario government on June 3, 2011 and comes into effect on July 1, 2011, although companies and organizations have been provided with further time to come into compliance with the specific obligations contained in the Integrated Standard.

The employment obligations contained in the Integrated Standard are discussed briefly below. With the exception of the obligations relating to workplace emergency response information, large organizations – meaning organizations with 50 or more employees – must come into compliance with the employment obligations by January 1, 2016 and small organizations – meaning organizations with less than 50 employees – must come into compliance by January 1, 2017.

EMPLOYMENT OBLIGATIONS

Recruitment. Employers must notify their employees and the public about the availability of accommodation for job applicants with disabilities in the recruitment process. Further, during the recruitment process, employers must notify job applicants when they are individually selected in the assessment or selection process that accommodations are available upon request. If an applicant requests accommodation, an employer must consult with the applicant and arrange for a suitable accommodation that takes into account the applicant's accessibility needs. When making an offer of employment, an employer must notify the successful applicant of its policies for accommodating employees with disabilities.

Employee Notifications. Employers must inform employees about their policies relating to the support of employees with disabilities, including policies on job accommodations that take into account an employee's accessibility needs due to disability. This information must be provided to employees as soon as practicable after they begin their employment, and updated information must be provided whenever there is a change to existing policies on the provision of accommodation.

Individual Accommodation Plans. Large organizations must have a written process in place for the development of documented individual accommodation plans for employees with disabilities. The written process must include a number of detailed prescribed elements. Employers must also develop and use individual accommodation plans that, among other things, identify any information regarding accessible formats and communication supports provided and any other accommodation that is to be provided.

Return-to-Work Process. Large organizations must develop and have in place return-to-work processes for employees who have been absent from work due to a disability and require disability-related accommodation in order to return to work. Such processes must be documented and must outline the steps the employer will take to facilitate the return to work and include an individual accommodation plan.

Performance Management, Career Development, Advancement, Redeployment. Employers who provide performance management, career development, advancement and/or redeployment to their employees must do so in a manner that takes into account the accessibility needs of employees with disabilities as well as individual accommodation plans.

Accessible Formats and Communication Supports. Upon request by an employee with a disability, and following consultation with the employee making the request, employers must provide or arrange for the provision of accessible formats and communication supports for information that is needed in order for the employee to perform his or her job and for information that is generally available to employees in the workplace.

Workplace Emergency Response Information. Employers must provide individualized workplace emergency response information to employees who have a disability, if the disability is such that the information is necessary and the employer is aware of the need for such accommodation. If an employee who receives individualized workplace emergency response information requires assistance and the employee consents, the employer must provide the workplace emergency response information to a person designated to provide assistance to the employee. Required information must be provided as soon as practicable after the employer becomes aware of the need for accommodation, and must be reviewed if the employee moves to a different location, his or her accommodation needs are reviewed, or the employer reviews its general emergency response policies. The compliance deadline for this requirement is January 1, 2012.

GENERAL POLICY AND TRAINING REQUIREMENTS

The Integrated Standard sets out a variety of general obligations for companies and organizations, which are not part of the specific standards relating to information and communications, employment or transportation. These obligations include the development of accessibility plans and policies, as well as training requirements. Of particular note is the obligation on organizations to ensure that training is provided on the requirements of the Integrated Standard and on the Human Rights Code as it pertains to persons with disabilities. Training must be provided to all employees, volunteers, individuals who participate in the development of the organization's policies and all other persons who provide goods, services or facilities on behalf of the organization. The training must be appropriate to the specific duties of the employees, volunteers and other persons. The compliance deadline for the training is January 1, 2015 for large organizations and January 1, 2016 for small organizations.

While the deadlines for compliance with the employment obligations in the Integrated Standard are certainly not immediate, companies and organizations would be well advised to consider how they intend to implement the obligations going forward. This will allow for the advance planning, organization and budgeting required to ensure compliance is achieved by the applicable deadlines.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.