Most employers are now familiar with the Accessibility for Ontarians with Disabilities Act, 2005 ("AODA"). Although the AODA has been around for 10 years, the AODA Accessibility Standards were developed, and are being phased in over time. The phased in structure is in place to assist organizations with the transition to this new compliance regime. However, often employers, even with the best intentions, get caught by surprise by the timelines for and extent of their AODA obligations.
Considering that a more active approach has been taken recently to enforcement of the AODA through audit blitzes, it is imperative that employers know their AODA obligations and take steps to ensure compliance.
Over the past few years, we have noticed a few common "pitfalls" for employers attempting to be AODA compliant.
1. Failing to Look Beyond the AODA Customer Service Standard Policy
A common pitfall that we have seen is organizations overlooking the requirement to prepare policies pertaining to the Integrated Accessibility Standard requirements. Employers fall into this trap due to the mistaken belief that they are not required to create additional accessibility policies beyond the AODA Customer Service Standard policy.
Organizations must create policies with respect to both the AODA Customer Service Standard and the Integrated Accessibility Standard. To understand this distinction, it is useful to examine the structure of the AODA regulations. In total, there are five accessibility standards under the AODA. The Customer Service Standard was the first standard to be enacted. The Integrated Accessibility Standard, which was enacted a few years after the Customer Service Standard, contains the remaining four accessibility standards: the Information & Communication Standard, the Employment Standard, the Transportation Standard, and the Design of Public Spaces Standard.
The Integrated Accessibility Standard requires organizations to develop policies pertaining to the requirements found under the standard, i.e. pertaining to the requirements under the Information & Communication Standard, the Employment Standard, the Transportation Standard (if applicable), and the Design of Public Spaces Standard. It also requires most organizations (other than private sector organizations with under 50 employees in Ontario) to prepare a statement of organizational commitment to meeting the needs of persons with disabilities in a timely manner.
In addition, the Integrated Accessibility Standard requires most employers (other than private sector organizations with under 50 employees in Ontario) to create an Accessibility Plan. The Accessibility Plan must outline the organization's strategy to remove barriers and meet its obligations under the Integrated Accessibility Standard. The Accessibility Plan must be updated at least once every five years. However, a best practice is to review the plan annually. Considering the rolling deadlines under the AODA Integrated Accessibility Standard, reviewing the Accessibility Plan annually is a good way to keep on top of your organization's AODA obligations.
2. Providing Incomplete AODA Training
Similar to the pitfall discussed above, some employers are not aware of the requirement to provide training under the Integrated Accessibility Standard. Again, this confusion arises where an organization has provided AODA Customer Service Standard training and does not realize that training is also required with respect to the requirements under the Integrated Accessibility Standard. Training is also required on the Human Rights Code as it pertains to persons with disabilities. In addition, a record must be kept of the training, including the dates on which the training was provided and the number of persons who received training.
Some organizations are also surprised to learn that the training obligation extends beyond their employee base. Organizations must ensure that training is provided to volunteers, all persons who participate in the development of the organization's policies, and all persons who provide goods, services or facilities on the organization's behalf. This means that organizations must ensure that volunteers, contractors and any other service providers have received AODA training.
3. Forgetting about Web Accessibility
The third common pitfall relates to web accessibility. Under the AODA Information & Communication Standard, all organizations (other than private sector organizations with under 50 employees in Ontario) must take steps to enhance web accessibility through compliance with the World Wide Web Consortium Web Content Accessibility Guidelines (WCAG) 2.0. From January 1, 2014 onward, any new internet website or content on those sites must conform with the WCAG 2.0 Level A. After January 1, 2021, all internet websites and the content on those sites must conform with the WCAG 2.0 Level AA (with some limited exceptions).
The web accessibility requirements currently in place apply to "new" internet websites. However, under the AODA a "new internet website" is not only a website that has a new domain name, but also a website with an existing domain name undergoing a "significant refresh". The term "significant refresh" is not defined in the AODA. The Ministry's manual, A Guide to the Integrated Accessibility Standards Regulation, suggests that a significant refresh could include a new look or feel to the website, a change in how users navigate around it, or a major update and change to the content of the website. This is very broad and could capture a wide variety of website changes.
Organizations making changes to existing websites must consider whether the changes may amount to a significant refresh triggering compliance with the AODA web accessibility requirements. Particularly in larger organizations where there may not be constant communication between departments, HR professionals should ensure that IT and other departments responsible for web changes are aware of the AODA web accessibility requirements.
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.