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Workplace Accessibility – Employers’ duties and obligations

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The Accessibility for Ontarians with Disabilities Act, 2005, (AODA) came into force in 2005 with the goal of making the province accessible for individuals with disabilities by 2025 through the implementation of accessibility standards. These standards are mandatory rules that businesses and organizations will be required to follow in five general areas: Customer Service, Information and Communications, Employment, Transportation and Built Environment.

The accessibility standards, which are phased in over time, are developed by committees comprised of members from both the business and disability communities.

This article focuses on the accessibility standards that must be met by employers in two of the above-noted areas: Customer Service and Employment.

The Customer Service Standard

The standard relating to customer service (the “Customer Service Standard”) came into force on January 1, 2008. It applies to every designated public sector organization and to every other person or organization that provides goods or services to members of the public or other third parties that have at least one employee in Ontario. All service providers must be in compliance with the Customer Service Standard as of January 1, 2012.

Under the Customer Service Standard, providers of goods and services are required to, among other things:

establish policies, practices and procedures governing the provision of goods or services to persons with disabilities, including policies that deal with the use of assistive devices;

permit a person with a disability accompanied by a guide dog or other service animal to enter the premises with the animal and to keep the animal with him or her unless the animal is otherwise excluded by law from the premises. If a service animal is excluded by law from the premises, the provider of goods or services must ensure that other measures are available to enable the person with a disability to obtain, use or benefit from the provider’s goods or services;
permit a person with a disability who is accompanied by a support person to enter the premises with and have access to the support person;  and
provide the public with notice of a temporary disruption of  particular facilities or services used by persons with disabilities.

Employment Standards

The employment standards implemented under the AODA (the “Employment Standards”) apply to all organizations that have at least one employee in Ontario. Volunteers and other non-paid individuals are not considered to be employees for this purpose.

Subject to a few exceptions, large private and not-for profit organizations with 50 or more employees must comply with the Employment Standards by January 1, 2016 whereas small private and not-for-profit organizations with less than 50 employees must comply with the Employment Standards by January 1, 2017.

The Employment Standards set out obligations for employers in areas such as employee recruitment, communication, performance management and the return-to-work process. Some of these obligations are considered below.

During recruitment, employers must notify employees and the public about the availability of accommodation for applicants with disabilities. When job applicants are individually selected to participate in an assessment or selection process, employers must notify them that accommodations are available upon request in relation to the materials or processes being used. If a selected applicant requests an accommodation, the employer must consult with the applicant and provide or arrange for the provision of a suitable accommodation, taking into account the applicant’s particular accessibility needs due to disability. When making offers of employment, employers must notify successful applicants of their policies for accommodating employees with disabilities.

With respect to existing employees, the AODA requires employers to inform their employees of the policies (and changes to those policies) that are used to support employees with disabilities, including policies on the provision of job accommodations that take into account an employee’s accessibility needs due to disability. Employers must provide this information to new employees as soon as practicable after the commencement of employment.

Upon the request of an employee with a disability, an employer 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 as well as information that is generally available to employees in the workplace.  The employer must consult with the employee making the request in determining the suitability of an accessible format or communication support.

In cases where employees have been absent from work due to a disability, most employers must develop and document a return-to-work process for employees who will require disability-related accommodations in order to return to work. The process must outline the steps the employer will take to facilitate the employee’s return to work.

Enforcement of the AODA

Under the AODA, accessibility standards will be enforced through inspections, compliance orders and the imposition of administrative penalties. For example, inspectors appointed under the AODA may enter a premises without a warrant to determine whether the business or organization is complying with its legislative obligations. In addition, the Director appointed under the AODA has the authority to issue orders and administrative penalties. Failure to comply with the AODA may be punishable by a fine of up to $50,000 for non-compliance by an individual or an unincorporated organization, and up to $100,000 for non-compliance by a corporation.

In light of the phasing in of various workplace accessibility standards under the AODA, Ontario employers should familiarize themselves with their obligations under the AODA and consider developing policies and plans that will ensure that they are in compliance with the various standards as of their respective implementation deadlines.

The content of this article is intended to provide general information for the reader and is not intended as advice or an opinion to be relied upon in relation to any particular circumstance.  For specific applications of the law to a particular set of circumstances, the reader should seek professional advice.

Talar Beylerian practices law as an associate in the litigation group with McLean & Kerr LLP, a law firm based in Toronto.

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