As recently discussed here, the AODA has a new set of requirements
effective January 1, 2016. Many of these requirements are located
in the Employment Standards, and as such are of particular
importance to employers. This article focuses on certain of
the AODA's 2016 requirements for which employers must develop a
Pursuant to the Employment Standards (a subsection of the Integrated Accessibility
Standards), employers are required to establish a
number of internal practices with respect to the recruitment,
accommodation and advancement of employees. Amongst these
various requirements are two internal processes that employers must
reduce to writing: (i) the creation of individual accommodation
plans; and (ii) a return to work process.
Individual Accommodation Plans
The AODA requires that employers with 50 or more employees in
Ontario must develop a written process to determine and document
the accommodation needs of employees with disabilities. By
establishing a procedure for developing accommodation plans,
employers will implement a consistent approach for accommodation of
employees with disabilities. The Employment Standards mandate
that the following elements must be included in the written
the manner in which the employee requesting accommodation can
participate in the development of the individual accommodation
the means by which the employee is assessed on an individual
the manner in which the employer can request an evaluation by
an outside medical or other expert, at the employer's expense,
to determine how accommodation can be achieved;
the manner in which the employee can request the participation
of their bargaining agent, or other representative (if not
unionized), in the development of the accommodation plan;
the steps that will be taken to protect the privacy of the
employee's personal information;
the frequency and manner in which the individual accommodation
plan will be reviewed and updated;
if an accommodation plan is denied, the manner in which the
reasons for denial will be proved to the employee; and
the means of providing the individual accommodation plan in an
accessible format; and
if requested or required, include information regarding the
employees accessible formats and communication supports provided,
individualized workplace emergency response information and any
other accommodation measures provided.
Return to Work Process
Employers with 50 or more employees in Ontario are required to
develop and implement a return to work process for employees that
have been absent from work due to a disability and require
disability-related accommodation in order to return to work.
This process must be reduced to writing.
The written return to work process must:
outline the steps that 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; and
use individual accommodation plans (as discussed above) as part
of the process.
Of note, if an individual's illness or injury is covered by
the return to work provisions of the Workplace Safety and Insurance
Act, then this process is not required for that individual and the
WSIB's process applies.
We note that many employers have existing processes similar to
those covered here in place, due to their requirements under the
Human Rights Code. However, we recommend reviewing those
processes to ensure that the elements set out above are captured,
and that the processes are reduced to writing. Should your
organization require assistance with achieving compliance with the
AODA, please reach out to a member of our Employment and Labour
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.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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