As of January 1, 2017, small and large employers have new compliance obligations under the Accessibility for Ontarians with Disabilities Act (the AODA). These obligations are in addition to an employer’s responsibilities under the Ontario Human Rights Code and Occupational Health and Safety Act in respect to accommodation to the point of undue hardship.
The AODA requires that employers ensure that, among other things, hiring processes, workplace policies, performance management, promotion and reassignment are accessible for employees with disabilities. Effective January 1, 2017, these requirements apply to all private employers in Ontario. Employers with fifty or more employees have additional obligations under the AODA, including creating written processes for developing individual accommodation plans, return to work plans, and assessing public space accessibility.
The obligation to comply with the AODA is a positive one and the legislation provides for routine workplace compliance audits and investigations. The audit program is already in place.
All private employers with 20 or more employees are required to file a compliance report by December 31, 2017. Employers with 20-49 employees are only required to file a compliance report with respect to the accessibility standards for customer service. Where required, compliance reports must be filed every three (3) years. The actual report process is currently under review, but it is anticipated that it will be a relatively straightforward on-line procedure.
Failure to comply with the AODA, including the failure to file the required compliance report can lead to serious penalties and fines. For minor infraction, such as failing to a file compliance report, there can be a DAILY fine of $500 for corporations and $200 for individuals or unincorporated organizations. For employers with a history of major infractions that pose risks to the health or safety of persons with disabilities, the AODA authorizes a maximum penalty of $15,000 PER DAY for corporations, and $2,000 PER DAY for individuals or unincorporated organizations. In cases of major contraventions and where there is a history of non-compliance fines can range up to $50,000 PER DAY for small employers, and up to $100,000 PER DAY for large employers. The legislation is relatively new therefore there is no substantive experience with the actual range of fines that might be imposed.
The AODA also requires that organizations provide training in respect of the AODA legislation and the Human Rights Code to all employees and to those persons who provide goods and services on behalf of the organization. Organizations will therefore have to ensure that any contractor or agent engaged by the organization has completed appropriate training, or include them in training sessions. We would be happy to assist you in developing appropriate training programs.
Small Employers (1 to 50 employees)
As of January 1, 2017 small employers (1 to 50 employees) have the following obligations.
- Recruitment – All candidates must be notified of the availability of accommodation at each stage of the interview and section process. The information must be on websites and all correspondence with the candidates
- Hiring – All job offers must include a statement to the employee about the availability of accommodation at the time the offer is extended along with information about the employer’s accommodation policies, if any. Small employers are not required to have specific return to work or accommodation plans, however, we recommend employers create general accommodation policies.
- Available Supports – All employees must be advised of available accommodation supports such as accommodation policies and processes. We suggest that where available, employers communicate the existence of EAP and human resources supports.
- Communications – Information and communications necessary to the performance of the employee’s job, or which is generally available to the employees in the workplace must be made available in an accessible format upon request. This would include newsletters policies, workplace communications, performance reviews and other workplace materials required in the course of the employee’s job.
- Workplace Emergency Response Plans – If required by the employee’s specific disability, employers must provide individualized emergency response plans. If the employee requires assistance, with the employee’s consent the plan may be provided to the individual providing the assistance.
- Performance Management – If the organization uses performance management, the process must consider the disability and the documents must be provided in an accessible format if required. The duty to accommodate of course requires that the employer consider the causal link between the disability and the reason for the poor performance.
- Promotions and Re-deployments to Avoid Lay-off – Employers must consider the accessibility and accommodation needs of the individual.
Large Employers (50+ employees)
Large employers have been subject to the above responsibilities since January 1 2016. In addition, large employers are also obligated to create accessibility plans, documented return to work processes, and individualized return to work plans. If you do not have such plans, we would be happy to assist you.
Large employers are already required to ensure that any new web content is accessible and by January 1, 2020, all web content must meet the WCAG 2.0 Level AA requirements. Organizations should work with an information technology professional to ensure compliance.
Contact a lawyer at Dunsmore Law for further information in order to ensure you are meeting your AODA obligations.
Thisarticle date does not constitute legal advice and represents only a summary of the issues.