HARD LABOUR – BY WARDSPC LAWYERS
ACCESSIBILITY - SMALL BUSINESSES MUST ALSO COMPLY WITH THESE NEW RULES AS OF JAN. 1, 2017 – ACCESSIBILITY FOR ONTARIONS WITH DISABILITIES – COMPLIANCE TIPS
The Accessibility for Ontarians with Disabilities Act (AODA) applies to both large (more than fifty employees) and small businesses in Ontario as of January 1, 2017. Some federally-regulated employers are exempt, but most of Ontario’s employers must now comply with the AODA’s Employment Standards regulations, being Part III of the Integrated Accessibility Standards, including a broad and extensive set of rules designed to minimize, if not eliminate, workplace barriers potentially encountered by those with disabilities in Ontario.
KEY COMPLIANCE TIPS:
- develop and implement a written policy addressing the accessibility, accommodation and other requirements of the Integrated Standards of the AODA, including for the employer’s recruitment, orientation, selection and hiring process;
- inform all employees and the public about the availability of accommodation in the employer’s recruitment procedures, such as in all job/position advertising and the employer’s Web site and social media outlets, including by providing contact information for the employer’s representative(s) to discuss accessibility and accommodation for illness or disability during the recruitment process;
- inform job candidates about the availability of accommodation for illness and disability during the selection and assessment process;
- identify the availability of accommodation in every offer of employment and refer to the employer’s AODA written policy;
- notify all employees and job candidates of the employer’s workplace policy(ies), if any, with respect to: encouraging and supporting employees with disabilities, including respecting the need for accommodation and accessibility needs due to disability;
- if requested, provide any information that an employee or successful job candidate may reasonably require to perform the position in an accessible format and, if possible, communicate and collaborate with the employee to identify and establish an effective accessible format suitable to that employee’s needs; and
- if requested, provide any information that is generally available to employees in an accessible format and, if possible, communicate and collaborate with any employees to identify and establish an effective accessible format suitable to the employee’s needs.
IAPs - HANDLING REQUESTS FOR ACCOMMODATION AND RETURN TO WORK:
The Employment Standards of the AODA also require employers to develop and implement a written policy (or process) for creating individualized accommodation plans (“IAPs”) for employees with disability who request accommodation or are returning to work following an absence due to any disability. This requirement is arguably technical and complex for many employers, particularly small businesses without experienced human resource personnel. Smaller employers, or those without human resource expertise, should consider obtaining assistance from a qualified employment lawyer or consultant, although there is some guidance available online for employers prepared to navigate this myriad of technical obligations.
IAPs must address, among other things:
- how accommodation may be requested;
- how employees will participate in the development and maintenance of the employee’s IAP;
- how the employee may be assessed on an individual basis;
- how the employer may request and obtain an assessment or evaluation by a third party, such as an external medical or other expert, at the employer’s expense, to assist the employer in determining if accommodation can be achieved and, if so, the nature and scope of the accommodation;
- how an employee can obtain assistance from a collective bargaining unit, co-worker or other third party suitable in the circumstances with respect to the employee’s IAP;
- how personal information will be kept and protected;
- how and when IAPs will be reviewed and updated, as necessary;
- the process required for the denial of any IAP;
- how IAPs are to be presented to employees with consideration to the employee’s accessibility needs;
- how accessible formats and communication supports will be provided to the employee, as may be necessary;
- how emergency workplace response information will be provided to the employee; and
- all the specific and well-defined accommodation or accessibility needs of the employee.
The Integrated Standards also require employers to establish a written return-to-work policy for employees absent from work due to an illness or disability and who require accommodation to facilitate the return-to-work. Often this policy will incorporate, if possible, the employee’s compensation, too – which is likely conjunctive with the return-to-work requirements imposed by the AODA. A return-to-work policy should specifically explain the return-to-work plan and process for the employee, including: (a) identifying the steps to be taken by the employer to facilitate the return to work of any employee absent because of disability; and (b) identify and refer to the use of the employee’s written IAP, if any.
All employers should determine if they are required by December 31, 2017 to file an Accessibility Report with the Ontario government.
Accessibility and workplace accommodation is often fluid and subject to continuous change. To accommodate those with disabilities, employers must continue to consider and address properly every employee’s disability, if any, accessibility needs and any applicable IAP needs, particularly in the hiring process, performance management, career development and enhancement and redeployment – failure to do so may violate the AODA.
The Integrated Standards are not the only obligations imposed on employers by the AODA. Additional obligations will continue to be imposed in future, such as for customer service, employee training and online accessibility.
The objective of these initiates is to foster an inclusive workplace, free from barriers that may negatively impact those with disabilities in Ontario. However, the specific requirements of the AODA can be complex, confusing and difficult to manage. Accordingly, employers should obtain assistance, such as from a qualified employment lawyer, specialized consultant or, at the very least, the Ontario government directly.
Thank you for reading this - Jason Ward of WARDS PC LAWYERS.
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This WARDSPC blog is for general information only. It is not legal advice, or intended to be. Specific or more information may be necessary before advice could be provided for your circumstances.
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