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March 21, 2012

AODA Update – What’s Next for Ontario Employers?

Author Malcolm MacKillop

Over the past decade, concern about accessibility for Ontarians with disabilities has grown, culminating in the passage of the Accessibility for Ontarians with Disabilities Act, 2005 (“AODA”). The goal of AODA is to make Ontario accessible by 2025 through the development, implementation, and enforcement of accessibility standards in a number of key areas including customer service, employment, transportation, and communication. While AODA itself is not a new law, regulations made under AODA – the Accessibility Standards for Customer Service, Ontario Regulation 429/07 (the “Customer Service Standard”) and the new Integrated Accessibility Standards, Ontario Regulation 191/11 (the “Integrated Standard”) – are ramping up employers’ obligations to individuals with disabilities.

What to watch for now? - The Customer Service Standard

The Customer Service Standard was the first accessibility standard to come into effect under AODA. Compliance is required for private sector employers as of January 1, 2012.

The Customer Service Standard applies to provincially regulated employers, with at least one employee in Ontario, who provide goods and services to members of the public or other third parties. The Customer Service Standard requirements apply not only to paid employees, but to every volunteer, agent, contractor, or other person who deals with members of the public or other third parties on behalf of the employer.

The major requirements of the Customer Service Standard include: establishing policies, practices and procedures governing the provision of goods and services to persons with disabilities that are consistent with the principles of dignity, independence, integration and equal opportunity; ensuring that persons with disabilities are permitted to be accompanied by a service animal or support person while accessing goods or services; providing notice to the public when experiencing a temporary disruption in service; establishing a process for receiving and responding to feedback about the manner in which goods and services are provided to persons with disabilities; and providing training about providing goods and services to persons with a disability to every person who deals with the public or other third parties.

The Customer Service Standard also includes additional requirements, primarily relating to documentation, for employers with more than 20 employees. In addition, Section 14 of AODA requires those subject to an accessibility standard to file an annual compliance report with the Government.

Employers not in compliance with the Customer Service Standard may face penalties, including an order requiring compliance within a specific period of time and financial penalties.

What’s coming up next? - The Integrated Accessibility Standard

The Integrated Accessibility Standard, combining accessibility standards in three areas – information and communication, employment and transportation - came into force on July 1, 2011. Compliance deadlines under the Integrated Accessibility Standard are staggered over the coming years and vary depending on the area and the type of organization.

The Integrated Accessibility Standard sets out certain general standards that include requirements that employers develop, implement and maintain policies on how they will achieve accessibility in accordance with the regulation, and that employers prepare a multi-year accessibility plan addressing how they intend to prevent and remove barriers to accessibility. Compliance timelines for these general standards range from January 1, 2013 to January 1, 2016 depending on the specific standard and the type of employer.

Of particular interest in the Integrated Accessibility Standard are the standards relating to employment. Interestingly, unlike the Customer Service Standard, the employment standards apply only to the employment of individuals and not to volunteers or other “non-paid” individuals. However, “employee” is not defined in the Integrated Accessibility Standard and it is unclear whether it will be interpreted broadly to include dependent and independent contractors.

The employment standards are extensive and include the following obligations for employers:

• Accommodating persons with disabilities during the recruitment process.
• Informing employees about the employer’s policies on accommodation of employees with a disability.
• Providing individualized workplace emergency response information to employees who have a disability if the disability is such that the individualized information is necessary and the employer is aware of the need for accommodation.
• Developing documented individual accommodation plans for disabled employees.
• Taking into account the accessibility needs of employees with disabilities during performance management, and career development and advancement.

The deadlines for compliance with the employment standards range from January 1, 2014 for large designated public sector organizations to January 1, 2017 for small private and not-for-profit organizations. The Ontario government has indicated that it plans to work with employers and provide resources, including online tools and resources, to assist employers in the implementation of AODA and the regulations.

As private sector employers were required to comply with the Customer Service Standard by January 1, 2012, employers should ensure that they have met their obligations. Going forward, employers will need to determine which standards and compliance deadlines contained in the Integrated Accessibility Standard apply to them and start planning how they intend to implement their obligations.

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