ARTICLE
8 February 2022

Accessible Canada Regulations Mean New Obligations For Federally Regulated Employers

F
Fasken

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Fasken is a leading international law firm with more than 700 lawyers and 10 offices on four continents. Clients rely on us for practical, innovative and cost-effective legal services. We solve the most complex business and litigation challenges, providing exceptional value and putting clients at the centre of all we do. For additional information, please visit the Firm’s website at fasken.com.
The Accessible Canada Regulations, SOR/2021-241 (the "Regulations") came into force on December 13, 2021. These long-anticipated Regulations set out many of the initial obligations applicable to...
Canada Employment and HR
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Introduction

The Accessible Canada Regulations, SOR/2021-241 (the "Regulations") came into force on December 13, 2021. These long-anticipated Regulations set out many of the initial obligations applicable to federally regulated employers under the Accessible Canada Act (the "Act"), including the obligations to prepare accessibility plans, feedback processes and progress reports. The Regulations also establish monetary penalties to help promote compliance with the Act. For more information on the Act and its framework, see our prior Federal Sector Update

Key Features of the Regulations

Accessibility Plans & Progress Reports

The first obligation under the Regulations is for employers to create an accessibility plan. Employment and Social Development Canada has prepared a module to provide guidance to employers with respect to the creation of accessibility plans (the "Module"). The Module elaborates on the obligations established by the Act and provides best practices for accessibility plans.

At a high level, the accessibility plan must show how the organization is taking steps to identify, remove, and prevent barriers to accessibility. The accessibility plan must be written in simple, clear and concise language. The Act and the Regulations also require that employers include the following in their accessibility plans:

  • Information regarding how employees, clients, members of the public and others can contact the organization;
  • Information regarding how the organization consulted with persons with disabilities in the preparation of the accessibility plan; and
  • The organization's policies, programs, practices and services in relation to the identification and removal of barriers, and prevention of new barriers in the areas required by the Act.1

The Module recommends that the following items also be included in the accessibility plan:

  • The organization's short-term and long-term accessibility goals;
  • An explanation of what the organization is currently doing, what the organization plans to do, and what the organization hopes to achieve in improving accessibility; and
  • A description of the organization's approach to accessibility training.

In addition, the Module recommends that organizations include useful accessibility-related information for clients and employees in the accessibility plan, such as: available resources to improve accessibility and support persons with disabilities; locations of accessible entrances, restroom and other accessible features; and references and/or links to accessibility-related materials, forms and communication platforms. Organizations are also advised to explain how accessibility fits into the organization's "culture" and how the organization intends to promote it.

The Regulations outline specific headings and content that must be included in the accessibility plan and the Module provides additional recommendations for those requirements. The accessibility plan must contain:

Heading  Requirements under the Act Recommendations in the Module 
 General
  • The position title of the person designated to receive feedback on behalf of the organization.
  • Information about how the public can communicate with the organization.
  • An executive summary of the accessibility plan.
  • An accessibility statement.
  • Basic information about the organization.
  • Team or committee members' names and/or any designated accessibility-related roles, if applicable. 
Separate Headings for Each Area Identified in the Act 
  • The organization's policies, programs, practices and services in relation to the identification and removal of barriers and the prevention of new barriers, in each area. 
  • Actions the organization is taking (or has already taken) to identify, remove and prevent barriers.
  • Descriptions of current levels of accessibility and accessibility goals.
  • Policies, programs, practices and services the organization intends to change, how the organization plans to change, and the results expected from the change.
  • Accessibility achievements or milestones.
  • Training that has been provided or that is planned.
  • Long-term plans for accessibility. 
 Consultations 
  • An explanation of how persons with disabilities were consulted in creating the accessibility plan2
  • Details of whom was consulted, including the number of participants, the range of disabilities represented, etc.
  • Details of what the organization consulted on, including the questions asked and answers received.
  • Details of when the consultation took place.
  • A description of how the organization consulted, including process and activities.
  • Details of where the organization consulted persons with disabilities.
  • The results of the consultation. 

 

The Module recommends steps that can be taken by organizations before writing the accessibility plan, including making decisions about who is responsible for the plan and feedback, conducting research and identifying barriers and consulting with persons with disabilities.

As we detailed in our original article on the Act, some organizations have accessibility obligations under both the Act and the relevant industry-specific legislation. For example, we have previously written about the Canadian Radio-television and Telecommunications Commission ("CRTC") accessibility requirements that are applicable to broadcasting undertakings, Canadian carriers and other telecommunication service providers. For organizations with dual accessibility obligations, the Module recommends that organizations prepare a single accessibility plan that meets the requirements of both bodies, rather than preparing two separate accessibility plans.

The progress reports required by the Act will require much of the same information as is required in the organization's accessibility plan. Although detailed guidance on preparing progress reports has not yet been released, the government has indicated this guidance will be published in early 2022.

Timelines for Compliance

The Regulations set deadlines for which the initial accessibility plan is due for non-exempt entities:

  1. federal government departments, the Canadian Forces, agencies and Crown corporations must publish their initial accessibility plans by December 31, 2022;
  2. private sector entities with 100 or more employees must publish their initial accessibility plans by June 1, 2023; and
  3. private sector entities with between 10 and 99 employees must publish their initial accessibility plans by June 1, 2024. Organizations are also required to publish progress reports in the two (2) calendar years following the publication of their initial accessibility plan. The accessibility plan must be updated every three (3) years. By way of example, private sector entities with 100 or more employees must publish their initial accessibility plan by June 1, 2023, publish a progress report by June 1, 2024, and publish a progress report by June 1, 2025. By 2026, the organization is then required to review the initial accessibility plan and a new three-year cycle would begin.

Availability and Publication of Accessibility Plans and Progress Reports

Federal organizations must publish their accessibility plans and progress reports by the deadlines set out above.

Once an organization's accessibility plan and/or progress report has been published, the organization must notify the Accessibility Commissioner within 48 hours of the publication. If an organization is required to notify another industry-specific body (such as the CRTC), notification should be made in accordance with requirements of the related legislation.

The accessibility plan and progress reports are required to be published in compliance with Level AA of the Web Content Accessibility Guidelines ("WCAG") on the home screen or homepage (or by way of hyperlink) of the main digital platform that the organization uses to communicate with the public. If the organization does not have a digital platform, then they are required to clearly display printed copies of their accessibility plans and progress reports in their place of business.

Organizations are required to provide their accessibility plans and progress reports in print, large print, braille, audio or electronic format (that is compatible with adaptive technology that is intended to assist persons with disabilities) upon request.

The Regulations impose time limits for responding to requests to provide an accessibility plan or progress report in an accessible format. The time limits range from 15 to 45 days, depending on the organization the request is made to and the nature of the accessible format requested.

Feedback and Document Retention

The Regulations require federal organizations to establish anonymous feedback processes that allow individuals to provide feedback by mail, telephone, email or in any manner that the organization communicates with the public. The feedback process must be published and must be made available in an accessible format. The feedback process must be made available at the same time that the organization publishes its initial accessibility plan.

The Regulations also require entities to keep their published accessibility plans, descriptions of their feedback processes and progress reports on their digital platform for seven years from the date of initial publication. Organizations who do not use a digital platform must also retain a copy of each document for seven years after it was originally published or, for a period beginning on the day of its publication and ending on the day on which a new description of the feedback process is published, whichever is longer.

Compliance and Enforcement

The Regulations classify violations of the Act as "minor", "serious" or "very serious". Each classification has a monetary penalty range. The penalty amounts for violations that fall within these ranges are calculated based on the following criteria:

  • the classification of the violation (i.e. minor, serious, very serious);
  • the entity's five-year history of prior notices of violation with warning or penalty;
  • a list of criteria used to determine the severity of the violation; and
  • the size of the entity.

The penalties can range from $250 to $250,000.

The Roadmap to Accessibility

Accessibility Standards Canada recently published the Roadmap to 2040 (the "Roadmap"). The Roadmap sets out flexible goals to guide Accessibility Standards Canada in reaching the goal of creating a Canada without barriers by 2040, including:

  • the development of standards in employment, plain language, emergency egress (exit), and outdoor spaces by the end of 2024;
  • the development of additional standards in the medium term (by the end of 2026) and the long-term (by the end of 2028);
  • the development of initial standards in all priority areas (which include employment, the built environment, information and communication technologies, communication, the procurement of goods, services and facilities, the design and delivery of programs and services, and transportation) by January 1, 2033;
  • conducting ongoing research to assess priorities; and
  • working closely with regulators, federally regulated entities, other government and standards development bodies, and other levels of government.

What's Next?

These Regulations prescribe some of the foundational requirements under the Act, creating a framework for organizations to track their commitments and progress towards greater accessibility. However, the Act and the Roadmap also contemplate the development of accessibility standards to address more specific barriers in priority areas; work on these standards is already underway. We will continue to provide updates as these standards are released and, if applicable, incorporated into binding regulations. 

Footnotes

1. is includes: employment; the built environment; information and communication technologies; communication (other than communication technologies, but including broadcasting); procurement of goods, services, and facilities; the design and delivery of programs and services; and transportation.

2. The Government has indicated it will publish guidance on consulting with persons with disabilities in early 2022.

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.

ARTICLE
8 February 2022

Accessible Canada Regulations Mean New Obligations For Federally Regulated Employers

Canada Employment and HR

Contributor

Fasken is a leading international law firm with more than 700 lawyers and 10 offices on four continents. Clients rely on us for practical, innovative and cost-effective legal services. We solve the most complex business and litigation challenges, providing exceptional value and putting clients at the centre of all we do. For additional information, please visit the Firm’s website at fasken.com.
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