Canada: The HR Space: More Protections For Disabled Employees Coming

Last Updated: August 24 2011
Article by Alix P. Herber

The HR Space is edited by Lyne Duhaime, Karen M. Sargeant and Brian P. Smeenk.

The Ontario government is leading the provinces in its push for accessibility for people with disabilities, a ratio which is estimated to rise to 1 in 5 people by 2025. In accordance with a new regulation under the Accessibility for Ontarians with Disabilities Act (the "AODA"), employers will be required to make their workplaces barrier-free for customers and employees. Although the AODA came into force in 2005, the regulations dealing with employment have just been introduced. The applicable regulation, the Integrated Accessibility Standards regulation (the "Regulation") came into force on July 1, 2011. It combines accessibility standards in three areas – information and communication, employment, and transportation.

The Regulation

The Regulation applies to public, private and non-profit organizations that provide goods, services or facilities to the public or other third parties. In general, these standards include requirements for organizations to:

(a) develop policies to achieve accessibility;

(b) prepare a multi-year accessibility plan (to be updated every five years) outlining the strategy to prevent and remove barriers; and

(c) provide training on the Regulation as well as the Ontario Human Rights Code as it relates to people with disabilities. This training is to be provided to employees, volunteers, persons who participate in developing the organization's policies, and "all other persons" who provide goods, services or facilities for the organization.

The employment standards in the Regulation build on employers' obligation to accommodate disabled employees under the Ontario Human Rights Code. They set out specific requirements for the recruitment, retention and accommodation of people with disabilities and apply to all organizations in Ontario with at least one employee. It is still unclear whether the term "employee" would include contractors.

Employers will be required to provide accommodation for applicants with disabilities in the recruitment process. If a selected applicant requests an accommodation, employers must then consult with the applicant and arrange for suitable accommodation that takes into account the applicant's accessibility needs due to disability. After hiring, the employer must provide the successful candidate with its accommodation policies. Employers will now be required to consult with the employee and provide accessible formats and communication supports to allow disabled employees to perform their job.

In conjunction with occupational health and safety legislation requiring emergency procedures for dealing with workplace violence, employers must also provide individualized emergency response information to disabled employees. The deadline for compliance with this requirement is coming up - January 1, 2012.

Public sector organizations and large private sector employers will be required to develop a written process for individualized accommodation plans and return to work plans for employees with disabilities. Employers will also be required to take into account accessibility needs of employees with disabilities and establish individual accommodation plans in relation to performance management, career development and redeployment.

Timelines for Compliance

Not everything must be done by next year. Specific requirements and compliance deadlines for the employment standards of the Regulation vary depending on whether the organization is:

  • the government (January 1, 2013);
  • a large public sector organization of 50 employees or more (January 1, 2014);
  • a small public sector organization of less than 50 employees (January 1, 2015);
  • a large private or not-for-profit sector organization of 50 employees or more (January 1, 2016); or
  • a small private or not-for-profit sector organization of less than 50 employees (January 1, 2017).

Timelines for other standards, such as customer service, may be different.

Ontario May Not be Alone

While Ontario is the first province to introduce this type of legislation, it is widely believed that other provinces will soon implement similar standards as accessibility becomes an increasingly prevalent concern across Canada. With penalties for contravention reaching up to $100,000, employers cannot afford to ignore this legislation. We suggest that Ontario employers begin to proactively plan compliance strategies so that they can meet the timelines outlined above. The requirements for plans and training are substantial; you don't want to be caught unaware.

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